The purpose of the Proceeds of Crime Bill is to
prevent criminals from being able to enjoy the fruit of their
crimes, by depriving them of the proceeds and benefits gained from
criminal conduct, and to prevent the re-investment of those
proceeds and benefits in further criminal activities.

Strong and effective action to confiscate proceeds of
crime assists in attacking the profit-motive of organised crime,
including illicit activities involving drug trafficking, people
smuggling, money laundering and large-scale fraud.

The Bill proposes a civil forfeiture regime, that is,
a regime directed to confiscating unlawfully acquired property,
without first requiring a conviction. That new regime will
operate in addition to the conviction-based confiscation
regime.

The procedures for civil forfeiture will enable
confiscation by a simpler civil process, where a court decides
whether it is more probable than not that a person committed a
serious offence and that property has been derived from that
conduct, without first needing a criminal prosecution leading to a
conviction before that property that can be confiscated. The
civil forfeiture regime will operate in parallel with the existing
conviction-based regime.

The Bill also strengthens the provisions relating to
the existing conviction-based scheme. Those provisions are
contained in the Proceeds of Crime Act 1987 which will
remain in effect so that matters being dealt with under that Act
may continue.

The Bill introduces provisions for the forfeiture of
literary proceeds, which are benefits a person derives from the
commercial exploitation of their notoriety from committing a
criminal offence. The expression “literary
proceeds” is intended to include “cheque-book
journalism” related to criminal activity. In general
those proceeds tend to fall outside the scope of recoverable
proceeds of crime as they are often not generated until after the
person has been convicted (and achieved notoriety). The Bill
sets out provisions for the confiscation of proceeds derived from
the exploitation of criminal notoriety by means of a penalty order
against the person.

The Proceeds of Crime Bill has a number of objects
intended to enhance the effectiveness of criminal laws of the
Commonwealth and external Territories. They are

(d) preventing the re-investment of the
fruits of offences in further criminal activities;

(e) enabling law enforcement authorities to
trace the fruits of offences;

(f) giving effect to Australia’s
obligations under the Council of Europe Money-Laundering Convention
and other international instruments that deal with confiscating
proceeds of crime;

(g) in respect of offences against the
laws of the States, the NT and the ACT, provide for the effective
enforcement of confiscation and restraining in the external
Territories.

Financial Impact

It is not possible to estimate the cost of bringing
confiscation proceedings, or of preserving and realising property
that is the subject of orders under the Bill. However, it is
expected that the revenue generated from the confiscation of
property will more than offset the investigative and legal costs in
bringing proceedings and administering property.

The amendments are expected to have a significant but
unquantifiable financial impact on Government revenue.

Abbreviations Used in the Explanatory Memorandum

ACT
Australian Capital Territory

AFP
Australian Federal Police

AFP
Act
Australian Federal Police Act 1979

ACS
Australian Customs Service

ALRC
Australian Law Reform Commission

ASIC
Australian Securities and Investments Commission

CAA
Confiscated Assets Account

CRF
Consolidated Revenue Fund

DPP
Director of Public Prosecutions

FTRA
Financial Transaction Reports Act 1988

IFO
interstate forfeiture order

IRO
interstate restraining order

LAC
legal aid commission

LPO
literary proceeds order

NCA
National Crime Authority

NT
Northern Territory

OT
Official Trustee

PPO
pecuniary penalty order

PoC
Act
Proceeds of Crime Act 1987

NOTES ON
CLAUSES

Chapter 1 - Introduction

Part 1-1 Preliminary

Clause 1 Short Title

1. This
is a formal clause which provides for the citation of the
Bill.

Clause 2 Commencement

The Bill commences on a day that it is proclaimed to
commence. If it is not proclaimed to commence within six
months of the date of receiving Royal Assent, it commences on the
day following the period ending six months after receiving
Assent.

Clause 3 Identifying defined
terms

This clause explains
that the definition of many of the terms used in the Act appear in
the Dictionary. The Dictionary is a definitional or
interpretative part of the Act and is located in Chapter
6.

Many of the terms
used in the Act are marked with an asterisk. This denotes
that the terms are defined in the Dictionary. Defined terms
are generally marked with an asterisk only at the start of the
relevant clause or subclause . However, the lack of an
asterisk does not mean that a relevant definition does not
apply.

Defined terms are
not asterisked in parts of the Act other than the clauses -
for example, they are not asterisked in the headings, notes or
examples.

Subclause 3(6) sets
out terms which are used throughout the Act and have a particular
meaning under the Act, but are not marked with an
asterisk.

Clause 4
Application of the Criminal Code

This clause applies
Chapter 2 of the Criminal Code to the offences in the
Act.

Part 1-2
- Objects

Clause 5 Principal
objects

This clause sets out
the seven major objects of the Act.

They include
preventing persons who commit offences against the Commonwealth and
non-governing Territories from enjoying the proceeds of those
offences and preventing the re-investment of the proceeds of a
crime in further criminal activities. The Act also aims to
enable law enforcement authorities to effectively trace and recover
the proceeds and instruments of offences, as well as identify the
benefits obtained by criminals from their offending.

Part 1-3
- Outline of this Act

This Part provides a
general outline of each chapter of the Act, and assists in locating
particular provisions of the Act (for example the forfeiture
provisions).

Clause 6
General

Clause 6 states that
there are six parts to the Act, and briefly describes
each.

Clause 7
The confiscation scheme (Chapter 2)

Clause 7 identifies
where the restraining order provisions and various confiscatory
provisions are located in the Act, and gives a brief description of
each.

Clause 8
Information gathering (Chapter 3)

Clause 8 sets out
the various ways in which information may be gathered under the
Act, and gives a brief description of each method.

Clause 9
Administration (Chapter 4)

Clause 9 identifies
the administrative matters dealt with in Chapter 4 of the Act, and
provides a brief description of each.

Clause 10
Miscellaneous

This clause states
that Chapter 5 of the Act deals with Miscellaneous
matters.

Clause 11
Interpreting this Act (Chapter 6)

Clause 11 notes that
Chapter 6 of the Act contains the Dictionary along with other
concepts central to the Act, such as ‘proceeds’
‘derived’ and ‘effective
control’.

Part 1-4
- Application

Clause 12 Act to bind
crown

This clause provides
that the Act binds the Crown in right of the Commonwealth, of each
of the States, the ACT, the NT and Norfolk Island.

It further provides
that nothing in the Act renders the Crown in right of the
Commonwealth, of each of the States, the ACT, the NT and Norfolk
Island liable to be prosecuted for an offence.

Clause 13 Act to apply both
within and outside Australia

This clause extends
the Act to acts, matters and things outside Australia, and to all
persons, unless the contrary intention appears.

Clause 14
Application

This clause applies
the Act to offences and to criminal convictions for an offence,
which occurred before or after the Act commenced.

Clause 15
Concurrent operation of State/Territory laws

This clause provides
that the Act is intended not to apply to the exclusion of the
concurrent operation of a law of a State or Territory to the extent
that the State or Territory law is capable of operating
concurrently with this Act.

Chapter 2 - The confiscation
scheme

Clause 16
Simplified outline of the Part

This clause gives a basic
outline of the ‘restraining order’ provisions contained
in this Part of the Bill.

Part 2-1 - Restraining
Orders

Division 1
- Making restraining orders

The restraint of
property suspected to be the proceeds or instrument of crime is a
crucial part of the forfeiture regime. This Division provides
that a court with proceeds jurisdiction must issue an order
restraining specified property where certain conditions have been
met.

Clause 17 Restraining orders
- people convicted of or charged with indictable
offences

This clause enables
a court to make a restraining order where a person has either been
convicted of an indictable offence, or has been or is about to be
charged with such an offence. This clause would be used where
conviction-based forfeiture action, under either Part 2-2 or
2-3 of Chapter 2, is to be taken, or an application for a
conviction-based pecuniary penalty order is to be made.

Paragraphs 17(1)(a)
and (b) enable the court to prohibit a person from dealing with
certain property, or prescribe that the property may only be dealt
with it in ways set out in the order. For example, a
restraining order may prohibit a person from selling or mortgaging
a business, but allow him or her to continue to run the
business.

The restraining
order may cover all of the property of the person convicted or
suspected of the offence (‘the suspect’), or specified
parts of that person’s property. In addition, the order
can extend to property of another person which is suspected of
being under the effective control of the suspect, or that is
suspected to be the proceeds or instrument of the offence or
offences on which the restraining order is based.

The DPP is not
required to prove that the property is effectively controlled by
the person, or is the proceeds or instrument of the offence or
offences. However, an affidavit setting out the suspicions
regarding the nature of the property and the grounds on which those
suspicions have been formed must accompany the application for the
order. Where the court is satisfied that there are reasonable
grounds for suspecting that the property specified in the
application is property of the suspect, or proceeds of the offence
etc, the court must specify that property in the restraining
order.

Where the person has
not been charged with or convicted of the offence, the affidavit
must also set out the grounds on which the person is suspected of
having committed that offence. The court must be satisfied
that the authorised officer who made the affidavit holds the
suspicion or suspicions on reasonable grounds: paragraph
17(1)(f).

Subclause 17(2) sets
out what property can be covered by a restraining order, and
subclause 17(3) states the requirements for an affidavit supporting
the application for the restraining order.

Subclause 17(4)
allows the court to refuse to make the restraining order if it is
not in the public interest to do so. However, the court may
only refuse if the offence with which the person is charged, is
about to be charged or is suspected of is not a serious
offence.

Subclause 17(5)
provides that the court must make a restraining order even if there
is no risk that the property will be disposed of or dealt
with. A restraining order is a condition precedent to the
court issuing an examination order, which is an important tool
which the DPP may employ to locate further property. It is
also necessary for a restraining order to be in place for the
automatic forfeiture provisions to apply (see Part 2-3).

Subclause 17(6)
enables a restraining order to operate in relation to property
which is not yet in the possession of the suspect at the time the
order is made. For example, the suspect’s bank account
may be restrained, and the court may order that any other amounts
paid into that account after the making of the order are also
restrained.

This clause enables
a court to make a restraining order where there are reasonable
grounds to suspect that a person has committed a serious offence
within the six years preceding the application for the restraining
order. This clause would be used where either
civil-forfeiture proceedings or civil-based pecuniary penalty order
proceedings were proposed to be instituted.

Paragraphs 18(1)(a)
and (b) enable the court to prohibit a person from dealing with
certain property, or prescribe that the property is only to be
dealt with it in ways set out in the order.

The restraining
order may cover all of the property of the person suspected of the
offence (‘the suspect’), or specified parts of that
person’s property. In addition, the order can extend to
property of another person which is suspected of being subject to
the effective control of the suspect, or that is suspected to be
the proceeds of the offence or offences on which the restraining
order is based. Property which is characterised only as an
instrument of the offence or offences is not able to be
restrained.

The DPP is not
required to prove that the property is effectively controlled by
the person, or is the proceeds of the offence or offences.
However, an affidavit setting out the suspicions regarding the
nature of the property and the grounds on which those suspicions
have been formed must accompany the application for the
order. The affidavit must also set out the grounds on which
the person is suspected of having committed the serious
offence.

Where the court is
satisfied that there are reasonable grounds for suspecting that the
property specified in the application is property of the suspect,
or proceeds of the offence etc, the court must specify that
property in the restraining order.

A restraining order
may only be applied for by the DPP. Before the court can make
a restraining order, it must be satisfied that the authorised
officer who made the affidavit holds those suspicion or suspicions
on reasonable grounds: paragraph 18(1)(f).

Subclause 18(2) sets
out what property can be covered by a restraining order, and
subclause 18(3) states the requirements for an affidavit supporting
the application for the restraining order.

Subclause 18(4)
provides that the court must make a restraining order even if there
is no risk that the property will be disposed of or dealt
with. A restraining order is the condition precedent to
obtaining a forfeiture order under clause 45 (see clause
45(1)(b)). In addition, a court may issue an examination
order only where there is a relevant restraining order in
force.

Subclause 18(5)
enables a restraining order to operate in relation to property
which is not yet in the possession of the suspect at the time the
order is made.

This clause enables
a court to make a restraining order where the property which is to
be the subject of the order is suspected of being the proceeds of
either an indictable offence, a foreign indictable offence or an
indictable offence of Commonwealth concern, which occurred in the 6
years preceding the application. Such an order would be
sought where civil-forfeiture proceedings under clause 47 were
proposed to be instituted.

The civil forfeiture
procedure under clause 47 does not require the identification of a
particular offender, or a particular offence. However, the
DPP is not prevented from bringing civil-forfeiture proceedings
where the identity of the person who is suspected to have committed
the relevant offence is known.

As with clauses 17
and 18, the court may prohibit a person from dealing with certain
property, or prescribe that the property is only to be dealt with
it in ways set out in the order.

A restraining order
under this clause covers the property which is reasonably suspected
of being the proceeds of a relevant indictable offence; instruments
can not be restrained. The application may be brought
only by the DPP, and must be supported by an affidavit from an
authorised officer setting out his or her suspicion that the
property is the proceeds of a relevant indictable offence.
The affidavit must also include the grounds on which that suspicion
rests. Where the court is satisfied that there are reasonable
grounds for suspecting that the property specified in the
application is the proceeds of a relevant indictable offence, the
court must specify that property in the restraining
order.

To make the
restraining order, the court must be satisfied that the authorised
officer who made the affidavit holds the suspicion or suspicions on
reasonable grounds.

Subclause 19(3)
allows the court to refuse to make the restraining order if it is
not in the public interest to do so. However, the court may
only refuse if the indictable offence which the property is
suspected of being the proceeds of is not a serious
offence.

Subclause 19(4)
provides that the court must make a restraining order even if there
is no risk that the property will be disposed of or otherwise dealt
with.

This clause provides
for a restraining order to be made where a person is reasonably
suspected of having committed an indictable offence, and the person
has derived literary proceeds from that offence. Where a
person has derived literary proceeds in Australia in relation to a
foreign indictable offence, the court may make an order if there
are reasonable grounds to suspect that the person has committed
that foreign indictable offence. The use of the phrase
‘reasonably suspected of committing an indictable
offence’ does no prevent a restraining order being sought and
made where a person has been convicted of a relevant offence, or is
charged or about to be charged with such an
offence.

A restraining order
would be sought under this clause where proceedings for a literary
proceeds order were to be instituted under Part 2-5 of Chapter
2.

There is no time
limit as to when the offence which the person was convicted of or
is reasonably suspected of having committed took place.
However, the literary proceeds that may be confiscated are limited
to those accrued after the Act commences. A restraining order
made on this basis may be made in respect of the same conduct which
grounded an earlier forfeiture action as the action would be aimed
at confiscating different property.

Paragraphs 20(1)(a)
and (b) enable the court to prohibit a person from dealing with
certain property, or to prescribe that the property may only be
dealt with it in ways set out in the order.

The restraining
order may cover all of the property of the person suspected of
committing the offence (‘the suspect’), or specified
parts of that person’s property. In addition, the order
can extend to property of another person which is suspected of
being subject to the effective control of the
suspect.

The DPP is not
required to prove that the property is effectively controlled by
the person, but an affidavit setting out the suspicion of an
authorised officer regarding the nature of the property, and the
grounds on which that suspicion has been formed, must accompany the
application for the order. The affidavit must also state that
the authorised officer suspects that the person has derived
literary proceeds, and if the offence is a foreign offence, that
the person derived those literary proceeds in Australia. The
grounds for those suspicions must also be set out in the
affidavit. If the person has not been convicted of the
relevant offence, the affidavit must also set out the grounds on
which the authorised officer suspects the person of having
committed the offence.

Where the court is
satisfied that there are reasonable grounds for suspecting that the
property specified in the application is property of the suspect or
property of a third party which is subject to the suspect’s
effective control, the court must specify that property in the
restraining order.

Before the court can
make a restraining order, it must be satisfied that the authorised
officer who made the affidavit holds those suspicions on reasonable
grounds.

Subclause 20(4)
allows the court to refuse to make the restraining order if it is
not in the public interest to do so. However, the court may
only refuse if the relevant offence is not a serious
offence.

Subclause 20(5)
provides that the court must make a restraining order even if there
is no risk that the property will be disposed of or dealt
with.

Subclause 20(6)
enables a restraining order to operate in relation to property
which is not yet in the possession of the suspect at the time the
order is made.

Clause 21
Refusal to make an order for failure to give
undertaking

This clause empowers
the court to refuse to make a restraining order where the
Commonwealth refuses or fails to give an undertaking as to costs
and/or damages flowing from the making and operation of the
order. This is one of the measures of the forfeiture scheme
which affords some protection for the person whose assets are
restrained, and ensures that the DPP only restrain a person’s
assets in appropriate circumstances. To do otherwise would
potentially leave the Commonwealth open to a large damages
payment.

Clause 22 Restraining orders
must only relate to one suspect

Subclause 22(1)
provides that a restraining order may only be made in respect of
one suspect. This does not prevent the restraining order
restraining the property of third parties. However, where
there are co-offenders a restraining order will be necessary for
the restraint of each co-offender’s property.

Subclause 22(2)
provides that the restraining order may relate to more than one
offence in respect of the same suspect.

Clause 22 does not
prevent an order being made where there is no identified suspect:
refer clause 18.

Clause 23 Conditions on
restraining order

This clause allows
the court to make a restraining order subject to
conditions.

Clause 24
Allowance for expenses

Subclause 24(1)
provides that property that is the subject of a restraining order
may be used to meet certain expenses or debts. However,
subclause 24(2) provides that expenses may only be met from the
restrained assets if the court is satisfied that the person cannot
meet them from unrestrained assets. This rule applies to a
third party as well as the person defending the forfeiture
action.

Paragraphs 24(1)(a)
and (b) provide that restrained assets may be used to pay the
living expenses of a person whose property is restrained, and any
dependants he or she may have. Paragraph 24(1)(c) allows the
business expenses of that person to also be met from the restrained
assets.

Paragraph 24(1)(d)
provides that payment of the legal expenses of the person whose
property is restrained may be made from the restrained assets;
however, payment of those expenses may only be made if the relevant
requirements in clauses 283 and 284 are met. Payment may only
be made from the restrained assets for expenses incurred defending
a criminal charge or contesting civil-forfeiture
proceedings.

The amount of the
expenses that may be met from the restrained assets pursuant to
paragraphs 24(1)(a)-(d) is fettered in each instance by the term
‘reasonable’.

Paragraph 24(1)(e)
provides that the person may also access restrained assets to pay
for a specific debt, which the person has incurred in good
faith. For example, the assets may be used to meet mortgage
payments, or the payments on a lease or hire-purchase
agreement.

Division 2
- How restraining orders are obtained

Clause 25
DPP may apply for a restraining order

Although a number of
Commonwealth agencies will investigate and be involved in
forfeiture actions, only the DPP may apply for a restraining
order.

Clause 26 Notice of
application

This clause sets out
the notice provisions for the obtaining of a restraining
order. The DPP may apply for a restraining order either on
notice to the owner of the property or ex parte . If
the DPP requests an ex parte hearing the court has no
discretion to refuse it. An application would usually be made
ex parte where there is a risk that the assets would be
dissipated, or that an investigation may be jeopardised by the
provision of affidavit material (see below and clause 29). If
notice is given, the hearing of the application must be at least
fourteen days from the giving of that notice.

If the DPP gives the
owner notice of the application, a copy of the application and any
affidavit must also be provided to that person. Where the DPP
believes that other people may have an interest in the property,
the DPP must also give them notice of the application, and a copy
of the application. The DPP does not have to initially
provide those people with a copy of the affidavit, but if a copy is
requested the DPP must comply as soon as is practicable. (By
contrast, if the DPP secures a restraining order ex parte ,
the court has discretion to order that all or part of the notice
and affidavit not be given to the owner of the property or other
relevant person, or that the giving of those documents is delayed :
see subclause 29(3)).

If the court
directs, the DPP must also give or publish notice to any other
person or class of persons.

A person who is
given notice of the application for a restraining order is able to
contest the application at the hearing of the
application.

Clause 27
DPP may choose under which section it applies for a restraining
order

This clause confirms
that in circumstances where the DPP is able to apply for more than
one type of restraining order, the DPP may choose under which
provisions it seeks the order.

Clause 28 Prejudice to
investigations

An application for a
restraining order will often be the first step in forfeiture
proceedings, and may occur before the investigation is
complete. Clause 28 will protect investigative agencies from
being compelled to give out information which could prejudice an
investigation or prosecution. This clause is based on
subsection 43(7) of the Proceeds of Crime Act
1987 .

Division 3 - Excluding
property from restraining orders

Clause 29
Grounds on which the court may exclude property from a restraining
order

Clause 29 enables a
person whose property is the subject of a restraining order under
either clause 17, 18 or 19 to have his or her property excluded
from that order. The property able to be excluded, and the
grounds which must be shown for that property to be excluded,
depends upon which basis the restraining order was made. An
application under this provision may be made by the suspect or
another person with an interest in the property.

An application for
forfeiture is able to be made at either the time the application
for the restraining order is heard or at a later time; the ability
of a person to make an application for exclusion is governed by
clauses 30 and 30.

Conviction-based
orders

Where the
restraining order is sought or was made under clause 17 -
that is, where the order is based on either the person’s
conviction for an offence or their charging, or proposed charging
with an offence - the property able to excluded depends upon the
type of offence he or she has been charged with.

If the offence (or
any of the offences if there are more that one) is a serious
offence, the person must show that the particular property is
neither the proceeds nor an instrument of unlawful activity :
paragraph 29(2)(a). ‘Unlawful activity’ is
defined to include an indictable State, Northern Territory or
Australian Capital Territory offence, as well as a Commonwealth
offence and a foreign offence.

If the offence or
all of the offences are indictable (not serious), then the person
must show that the particular property is not the proceeds or
instrument of any offence to which the restraining order relates:
paragraph 29(2)(b).

Civil forfeiture:
serious offences

If the order is
sought or was made under clause 18 - that is, on the basis
that there are reasonable grounds to suspect that an identified
suspect committed a serious offence within the last six years - the
person must show that the property is not the proceeds of
‘unlawful activity’ : paragraph
29(1)(c).

Where the
restraining order was made on the basis of an offence against
section 15, 24, 29 or 31 of the Financial Transaction Reports
Act 1988 , subclause 29(3) enables the court to exclude property
from the restraining order where the suspect adduces evidence on
which the court finds on the balance of probabilities that the
conduct which breached the FTR Act was not done for the purpose of,
in preparation for or in contemplation of any other indictable
offence, state indictable offence or foreign indictable
offence.

Specified FTRA
offences have been included in the definition of ‘serious
offence’ in the Bill where the transaction or transfer
involves at least $50,000, as they are often pointers of money
laundering (or another serious offence) taking place.
However, there are a number of other circumstances in which a
person may contravene one of the provisions, but not be engaged in
a serious offence. For example, a person who is considering
divorcing his or her spouse might set up a bank account in a false
name and put money into that account (which is contrary to section
24 of the FTRA). While this might contravene Commonwealth
legislation it is not the type of conduct to which civil forfeiture
based on a serious offence is directed. Where a person has
contravened a relevant provision, but the court finds that it is
not a precursor to another indictable offence, the person cannot be
exposed to civil forfeiture based on a suspicion of committing a
serious offence. However, the person may still be liable for
civil forfeiture of the proceeds of the offence under the
provisions relating to conduct constituting indictable
offences.

Civil forfeiture:
indictable offences

Where the order or
application is made under clause 19 - that is, where there
are reasonable grounds to suspect that the property the subject of
the restraining order or application is the proceeds of a relevant
indictable offence committed within the last six years - a person
wishing to exclude property from the restraining order must show
that the property is not the proceeds of an indictable offence, a
foreign indictable offence or an indictable offence of Commonwealth
concern : paragraph 29(1)(d).

Before the court may
release the property on any of those grounds, the court must also
be satisfied that neither a PPO or LPO could be made against the
suspect (if the property is under his or her effective control) or
the owner of the property : subclause 29(4).

Clause 30 Application to
exclude property from a restraining order after notice of the
application for the order

Subclause 30(1)
enables a person who is given notice of an application for a
restraining order to seek to have specified property excluded from
that order. The person must apply to the court within 14 days
of being notified, and must give the DPP notice of the grounds on
which the exclusion is being sought.

The DPP must provide
the person with notice of any grounds on which it proposes to
contest the person’s application, and may appear and adduce
evidence at the hearing of the application.

Clause 31 Application to
exclude property from a restraining order after notice of the
order

Once a restraining
order has been made, clause 31 enables a person whose property is
restrained by the order to apply to have some or all of the
property excluded.

Subclause 31(1)
provides that a person must apply to the court for such an
exclusion within 28 days of the order being made.

Subclause 31(2)
restricts the ability of a person who received notice at the
application stage to apply for an order. Whether or not that
person appeared at the hearing for the restraining order, he or she
must seek the leave of the court to apply for an exclusion order
under this clause.

Where a person seeks
the leave of the court, subclause 31(3) provides that the court may
only grant that leave if certain circumstances apply. If the
person failed to appear at the hearing, the court may only grant
leave if the person had a good reason for not appearing. If
the person did appear, the court may grant leave if that person now
has new evidence (which was not available at the time of the
hearing). Paragraph 31(3)(c) also provides the court with a
discretion to grant leave if there are special
grounds.

Subclause 31(4)
provides that the person must give the DPP notice of the
application for exclusion and the grounds on which the exclusion is
being sought; subclause 31(6) requires the DPP to provide the
person with notice of any grounds on which it proposes to contest
the person’s application.

Division 4
- Giving effect to restraining orders

Clause 32 Notice of a
restraining order

Clause 32 ensures
that each person whose property is restrained (whether or not that
person had notice of the application for the restraining order) is
given written notice of the restraining order.

If the person does
not already have a copy of the application and any affidavit
material, the DPP must supply that information to the person.
However, subclause 29(3) provides the court with a discretion to
order that all or part of the notice or affidavit not be given to
the owner of the property or other relevant person, or that the
giving of those documents is delayed. Subclause 29(4)
provides that if the giving of notice is delayed, the DPP must
provide it as soon as practicable after the end of that
period.

Clause 33 Registering
restraining orders

This clause provides
that where the Commonwealth or a state or territory has a system of
registration for certain types of property the DPP may apply for a
restraining order to be registered with the relevant
authority. Once registration is effected, any person who
deals with the property is taken to have notice of the restraining
order for the purposes of clause 35, and not to be acting in good
faith for the purposes of clause 32. Dealing with restrained
property contrary to a restraining order is an
offence.

The most likely
property to be registered will be real property; however, motor
vehicles, boats and many other types of property also have relevant
registration systems.

Clause 34
Court may set aside a disposition contravening a restraining
order

Subclause 34(1)
enables the DPP to apply to the court to set aside a disposition or
dealing with property which contravenes a restraining order when
that disposition or dealing was either not for sufficient
consideration, or was not in favour of a person who acted in good
faith.

Subclause 34(2)
provides that the court may set aside such a dealing or disposition
from either the day it occurred, or the day on which the order is
made. If the court sets the disposition or dealing aside on
the day of the order, the court may at that stage declare the
rights of a person who acquired an interest in the property between
the time of the dealing or disposition and the court
order.

This clause would
enable all gifts of restrained property to be set aside, as no
consideration is exchanged when making a gift. This clause
would also catch transactions where there was sufficient
consideration, but the person buying the restrained property knew
that the property was restrained, and thus acted in bad
faith. The court may choose to set the transaction aside on
the day of the order, and declare that such a person had no right
or interest in the property, but was entitled to a refund of the
consideration he or she paid for the property.

However, a person
who acted in good faith and provided sufficient consideration would
not be subject to the transaction being set aside.

Clause 35 Contravening
restraining orders

Under subclause
35(1) it is an offence to dispose of or otherwise deal with
restrained property in contravention of a restraining order where
the person knows or is reckless as to whether the property is
covered by a restraining order.

Under subclause
35(2), a person is guilty of an offence if he or she deals with the
property in contravention of a restraining order and the
particulars of that order were recorded on a register, pursuant to
subclause 31(1) or he or she was notified of the making of the
restraining order under clause 29.

The maximum penalty
that may be imposed for each offence is imprisonment for 5 years, a
fine of 300 penalty units, or both.

Division 5
- Further orders

Clause 36
Court may order Official Trustee to take custody and control of
property.

This clause enables
a court to order the Official Trustee (OT) to take custody and
control of restrained property where the court considers it
necessary to do so. For example, the court may order this if
there is a risk that the property would otherwise be dealt with
contrary to the restraining order; alternatively, the property may
require the OT to manage it to ensure it does not lose
value.

Clause 37 Ancillary
orders

Subclause 37(1)
enables a court to make orders ancillary to a restraining order at
either the time the order is made, or at a later time.
Paragraphs 37(1)(a)-(e) set out types of ancillary orders that the
court may make; however, the court is not restricted to only those
ancillary orders.

Paragraph 37(1)(a)
enables a court to make an order varying the property covered by
the restraining order. For example, the court may order the
inclusion of property whose existence is discovered in an
examination.

Under paragraph
37(1)(b) a court can make an order varying a condition of the
restraining order.

The court may also
amend the need for the DPP to provide an undertaking under clause
21: paragraph 37(1)(c).

Paragraph 37(1)(d)
enables a court to make an order directing the owner of property to
give a sworn statement about the particulars of the property, or
that person’s dealings with the property. The court may
make the order in respect of a director of a body corporate which
owns property. For example, the DPP may apply to the court
for an order in respect of a director to establish whether a person
has effective control over a piece of property.

Paragraph 37(1)(e)
enables a court to make ancillary orders with respect to the OT
having custody and control of restrained property. Such an
order may regulate the way in which the OT performs its functions
or powers, determines questions relating to the property (such as
the liabilities of the owner of the property in the custody and
control of the OT) or direct a person to do anything necessary or
convenient to enable the OT to take custody and control of the
property.

Pursuant to
paragraph 37(1)(f), the court may make an ancillary order giving
directions about the operation of the restraining order and a
forfeiture order which covers the same property as the restraining
order or a PPO or LPO that relates to the same offence as the
restraining order.

The court may also,
pursuant to paragraph 37(1)(g) order a person whose property is
subject to a restraining order and with property outside of the
jurisdiction to do anything necessary or convenient to bring it
into the jurisdiction. Failure to comply with this order is
an offence punishable by five years’ imprisonment or 300
penalty units or both: see clause 38. This enables a court to
make orders in relation to all of a person’s property, or to
take appropriate action against a person who refuses to bring all
of his or her assets into the jurisdiction.

Subclause 37(2)
provides that the DPP, the owner of restrained property, the OT
(where the OT has been directed to take custody and control of the
property) and any other person by leave of the court may apply to
the court for an ancillary order. The court may not make an
ancillary order of its own motion.

Subclause 37(3)
ensures that each party who is entitled to make an application for
an ancillary order is given notice of any order which is
sought.

Subclause 37(4)
makes it clear that an ancillary order may be made at either the
time that the restraining order is made or at any time
thereafter.

If a restraining
order, or part of the restraining order, ceases to be in force
because the property it covers is forfeited, or that property was
covered by a PPO or LPO which has been satisfied (see subclauses
43(4) and (5)), that alone does not cause any orders ancillary to
the restraining order to cease: subclause 37(5).

Clause 38 Contravening
ancillary orders relating to foreign property

If a person is ordered by the court to bring
his or her property into the jurisdiction, and contravenes that
order, the person is guilty of an offence under clause 38, and
liable to 5 years’ imprisonment or a fine of 300 penalty
units, or both.

Division 6
- Duration of restraining orders

Clause 39
When a restraining order is in force

This clause
establishes that a restraining order comes into force upon the
order being made.

Clause 40
Application to revoke a restraining order

Subclause 40(1)
enables a person who was not given notice by the DPP of the
application for a restraining order to apply to revoke that
order. The person must apply within 28 days of being given
notice that the order has been made. This may apply where the
application was made ex parte , or where the application was
made on notice, but the person was not given notice (for example,
their interest in the property was not known at the time of the
application). The person must provide notice to the DPP and
the OT of the application and the grounds on which the application
is made.

Subclause 40(3)
ensures that the restraining order remains in force throughout
revocation proceedings until revoked by the court.

Subclause 40(4)
allows the DPP to introduce additional evidence at the hearing of
the application to revoke the order. Subclause 40(4) provides
that the court may revoke the restraining order if it is satisfied
that there is no basis on which to make the order at the time that
the revocation application is considered. Taken together,
those subclauses allow the court to look at the material supporting
the grounds for the restraining order not at the time that the
original order was made, but at the time an applicant seeks to have
it revoked. This may be some time from when the original
order was made.

Clause 41
Notice of revocation of a restraining order

This clause provides
that where a restraining order is revoked, the DPP must give
written notice of that revocation to the owner of the property and
other persons with an interest in the property. However, the
clause does not require the DPP to give notice to the
applicant.

Clause 42
Giving security etc. to revoke etc. a restraining
order

Subclause 42(1)
enables a suspect whose property is restrained to have the
restraining order revoked or amended to exclude certain property
upon him or her providing the court with a security that would meet
any liability that may be imposed on the suspect under the
Act. The suspect must provide the DPP with written notice of
the application.

Unlike the other
revocation provisions, the suspect does not have to show that the
property is not the proceeds or instrument of an offence, or
otherwise dispute the nature of the property.

Subclause 42(2)
enables a third party whose property is restrained to have the
restraining order revoked or certain property excluded from the
order upon providing the court with an undertaking. That
undertaking is not required to involve a monetary amount, or be
able to cover any possible liability imposed under the Act -
the only requirement is that it be satisfactory to the
court.

Clause 43
Cessation of restraining orders

Clause 43
establishes the various ways in which a restraining order will
cease to operate.

Effect on
restraining orders of withdrawal of charges, acquittals
etc

A restraining order
which was made on the basis of a conviction, charge or imminent
charge, will cease to be in force at the expiration of 28 days from
any of the events set out in paragraphs 43(1)(a)-(c)
occurring.

Those paragraphs
relevantly provide that a restraining order will cease if the
suspect is charged with an offence and the charge is withdrawn, if
a suspect is acquitted of the offence or all of the offences with
which he or she was charged, or if a suspect’s
conviction is quashed.

However, if a
confiscation order relating to the offence or offences on which the
restraining order was based has been made, or there is an
application for such an order before the court, the restraining
order does not automatically cease to be in force -paragraphs
43(1)(d) and (e). Alternatively, if the suspect is charged
with a related offence (as defined), or an application for
confirmation of a forfeiture order (which relates to the offence)
has been made, the restraining order does not cease to be in force
: paragraphs 43(1)(f) and (g).

Restraining
orders if there is no conviction etc.

Subclause 43(2)
provides that if the suspect has not been convicted of, or charged
with, the offence, or at least one of the offences, to which the
restraining order relates, within 28 days of the restraining order
being made, and no application for a confiscation order or
confiscation order has been made in relation to that offence, the
restraining order immediately ceases to be in force.

Restraining
orders and forfeiture orders

Subclause 43(3)
establishes a number of ways in which a restraining order may cease
to be force.

Sub-paragraph
43(3)(a)(ii) provides that a restraining order ceases to be in
effect in relation to particular property if that property is
excluded from the restraining order. The restraining order
would remain in effect if there was other property restrained which
was not yet forfeited.

Where a forfeiture
order is made in relation to restrained property, the discharge or
cessation of that forfeiture order will cause the restraining order
to also cease: paragraph sub-paragraph 43(3)(a)(iii). A
restraining order covering property that is subsequently excluded
from forfeiture pursuant to clause 90 ceases to be in force in
relation to that excluded property : sub-paragraph
43(3)(a)(iv).

Where a court
refuses an application for a confiscation order in respect of
restrained property, and either the time for an appeal against that
refusal has expired without an appeal being lodged, or an appeal
has lapsed or been dismissed and finally disposed of, the
restraining order immediately ceases to be in force in relation to
that property : see sub-paragraph 43(3)(a)(i) and paragraph
43(3)(b).

However, where
relevant, paragraphs 31(c) and (d) provide additional criteria that
must be present before the restraining order can cease. An
order cannot cease if there is an application for another
confiscation order which is yet to be determined, and that
application relates to the offence on which the restraining order
is based, or a related offence. Where relevant, a restraining
order cannot cease if there is in force another confiscation order
which relates to the offence on which the restraining order is
based.

Where property is
forfeited under Division 4 of Part 2-2 (civil forfeiture,
conviction-based forfeiture for a non-serious offence), or Division
1 of Part 2-3 (automatic forfeiture on conviction of a serious
offence) the restraining order ceases to operate in relation to
that property: subclause 43(4)

Subclause 43(5)
provides that property which was restrained in contemplation of a
confiscatory action immediately ceases to be restrained under the
restraining order if a PPO or LPO is satisfied or the property
covered by the restraining order is sold or disposed of to satisfy
the PPO or LPO. The restraining order also immediately ceases
if the PPO or LPO is discharged or otherwise ceases to have
effect.

Restraining
orders and instruments owned by third parties

Subclause 43(6) provides that, in spite of
subclause 43(1), where the property of a third party (which
is not under the effective control of the suspect, and is not the
proceeds of the offence to which the order relates) is restrained
as an instrument of the relevant offence, the restraining order
ceases to be in effect in relation to that instrument if the
suspect has not been charged with the offence or related indictable
offence within 28 days of the restraining order being made.
This ensures that third party instruments only continue to be
restrained in circumstances where they could be forfeited.

Part 2-2-
Forfeiture Orders

Clause 44
Simplified outline of this Part

This clause gives a
basic outline of the ‘forfeiture order’ provisions
contained in this Part of the Bill.

Division 1
- Making forfeiture orders

Clause 45
Forfeiture orders - conduct constituting serious
offences

Civil-forfeiture:
serious offences

Subclause 45(1) requires a court, on the application
of the DPP, to make a ‘civil-forfeiture’ order against
property which has been restrained under the Bill for at least six
months if the court is satisfied that the person engaged in conduct
which constituted a serious offence within the 6 years prior to the
making of the application for the restraining order. Thus,
the court is required to make a forfeiture order in relation to all
property which has not been the subject of a successful application
for exclusion from restraint (under the exclusion provisions of
Part 2-1 of Chapter 2), or from forfeiture (under the exclusion
provisions of Division 5 of this Part).

Unless an application for exclusion from forfeiture
is made under clause 70, the court would not be required for the
purposes of making a forfeiture order to be satisfied about the
nature of the property being forfeited. The forfeiture order
may apply to any property of the suspect or another person which
could have been restrained under clause 18.

To make a civil forfeiture order, the court must find
to the civil standard (‘on the balance of
probabilities’) that the person engaged in conduct
constituting a serious offence within the last six years.
‘Serious offence’ is defined in Part 6-2. The
serious offence need not be the same offence on which the
restraining order was based, and a particular offence need not be
proved. It is sufficient for the court to be satisfied that
any serious offence has been committed.

Subclause (3) states that the raising of a doubt as
to whether a person engaged in conduct constituting a serious
offence is not a sufficient ground on which a court can find that a
person did not engage in such conduct. This provision is
based on subsection 22(6) of the NSW CARA.

Subclause (4)
provides safeguards in relation to certain offences against the
Financial Transaction Reports Act 1988 which are serious
offences by virtue of being specifically included in the
definition. ‘Serious offence’ is defined to
include offences against sections 15, 24, 29 and 31 of the
Financial Transaction Reports Act 1988 where the transaction
or transfer involves at least $50,000. Those offences are
included on the basis that they are often an indicator of money
laundering or other serious criminal activity. It is intended
that those offences be regarded as serious offences within the Act
if they occur in certain circumstances. Where it can be shown that
any such offence is not preparatory to another offence, the person
should not be exposed to civil forfeiture for a serious
offence. In those circumstances, subclause 45(4) enables a
court to refuse an application for a serious offence forfeiture
order. However, other avenues for civil forfeiture may be
available.

Clause 46
Forfeiture orders - convictions for indictable
offences

Conviction-based
forfeiture

Clause 46 enables a
court to make a forfeiture order, on the application of the DPP, in
relation to the proceeds or instruments of an indictable offence of
which a person has been convicted. Unlike civil-forfeiture based on
conduct constituting serious offences (clause 45) or automatic
forfeiture (Part 2-3)), it is only the proceeds or instruments of
the particular offence or offences of which the person has been
convicted which can be forfeited under this clause. For
example, if a person is convicted of defrauding social security of
$5,000, it is only the proceeds or instrument of that particular
offence that may be forfeited under this provision. However,
the application of the clause is not restricted to the property of
the person convicted of the particular offence - property in the
possession of a third party which falls within the definition of
proceeds or instrument (see clause 325), is also liable to
forfeiture.

Clause 46 can be
applied where a person has been convicted of one or more indictable
offences even if these also include one or more serious
offences. Under Part 2-3, property is liable to automatic
forfeiture where a person is convicted of a serious offence.
However, automatic forfeiture is only available if there is a
restraining order under Part 2-1 of this Chapter. In
situations where there is no restraining order, clause 46 can be
relied upon to make a forfeiture order in relation to proceeds or
instruments of the offence.

Where the court is
satisfied (to the civil standard) that particular property is the
proceeds of one or more of the offences for which the person was
convicted, the court must make an order forfeiting that property
under subclause 46(1). Forfeiture may be ordered under this
subclause even if a particular piece of property could be
classified as both proceeds of one offence and an instrument of
another offence.

If the court is
satisfied that property is not proceeds of the offence or offences,
but is an instrument of any such offence, the court has a
discretion as to whether to order forfeiture of that property:
subclause 46(2). Subclause 46(3) sets out the matters that
the court may have regard to in determining whether or not to order
forfeiture of instruments. Discretion is afforded in relation
to the forfeiture of instruments of crime in recognition that
forfeiture may be unduly harsh in some circumstances. For
example the court may find that a hire car is an instrument of an
indictable offence, and thus liable to forfeiture. However,
having regard to the use that is ordinarily made of the car
(pursuant to paragraph 46(3)(b)), the court may decline to order
forfeiture.

Clause 47 provides
for civil forfeiture orders for circumstances where conduct
involves indictable offences. The court must make such an
order, on the application of the DPP, in relation to property which
has been restrained for six months under Part 2-1 of this Chapter
and no application for exclusion from restraint has been made or is
on foot. If an application for exclusion from restraint has
been made, the court is also required to find (on the civil
standard) that the property is the proceeds (as defined) of an
indictable offence, a foreign indictable offence or an indictable
offence of Commonwealth concern (each of those terms is defined in
Part 6-2) committed within the 6 years preceding the application
for the restraining order.

It is not
necessary for the court to make a finding either that a particular
offence has been committed or that a particular person committed
any offence: subclause 47(2).

Before the court may
make a civil forfeiture order under clause 47 it must be satisfied
that the DPP has taken reasonable steps to identify and notify any
person with an interest in the property: paragraph
47(1)(d).

Clause 48
Existence of other confiscation orders

Clause 48 makes it
clear that the existence of another type of confiscation order in
relation to a particular offence does not affect the ability of the
court to make a forfeiture order in relation to that same
offence.

Clause 49
Making of forfeiture order if person has absconded

Clause 49 imports
two additional elements of which the court must be satisfied before
a forfeiture order can be made against a person deemed to have been
convicted of an indictable offence by virtue of the operation of
paragraph 326(1)(d).

First, the court
must be satisfied, to the civil standard, that the person did
abscond (as defined) in connection with the indictable offence:
paragraph 49(a).

Secondly, either of the elements
set out in paragraph 49(b) must occur: the person must have
been committed for trial for the offence, or the court hearing the
application for the forfeiture order must be satisfied that on the
available evidence a reasonable jury could lawfully find the person
guilty of the offence.

This ensures that a forfeiture
order is made in relation to a deemed conviction only after a court
has assessed the evidence of the offence, thus preventing a
forfeiture order being made in circumstances where there was
insufficient evidence to require the person to stand trial for the
offence.

Clause 50 Jurisdictional
issues concerning forfeiture orders

Subclauses 50(1)-(3) clarify
jurisdictional issues that may arise to ensure that courts have the
ability to make orders made under this Part.

Division 2 - Other
relevant matters when a court is considering whether to make
forfeiture orders

Clause 51
Presumption in certain cases that property is an instrument of an
offence

When a court is
hearing an application for a conviction-based forfeiture
order under clause 46, clause 51 provides a rebuttable presumption
that property in a person’s possession at the time of, or
immediately after, the commission of an offence, was used in, or in
connection with, the offence.

This presumption is
established by evidence of the property being in the person’s
possession at the relevant time. Unless there is evidence
that tends to show the property was not used in, or in connection
with, the offence, the court must presume that the property was so
used, and thus is an instrument of the offence.

However, if such
evidence is provided to the court, the court cannot make a
forfeiture order unless it is satisfied that the property was used
or intended to be used in, or in connection with, the commission of
the offence.

This clause is based on subsection 19(6) of the
Proceeds of Crime Act 1987 .

Clause 52
Forfeiture orders can extend to other interests in
property

This clause allows
the court to specify in a forfeiture order interests in property
other than the interest of the person who is the subject of the
order. This may be done if the proceeds from the disposal of
the combined interests is likely to be greater than the proceeds of
the interests if disposed of separately, or if disposing of the
interests separately would be impractical or significantly more
difficult than disposing of the combined
interests.

If the court does
specify other interests in the property, the court may make
ancillary orders to protect a person who has one or more of the
other interests. Such orders may include an order directing
the Commonwealth to pay the person the value of their interest, or
an order directing that specified other interests in the property
be transferred to the person.

For example, where
property is owned by joint tenants the disposal of the entire
property may be the only way to realise the value of that
property. In such a situation the court could specify that
the interest of the innocent joint tenant is to be included in the
forfeiture order, but protect that person’s rights by making
an ancillary order that the Commonwealth pay that person half of
the proceeds from the sale.

In deciding whether
to make an ancillary order, the court must have regard to the
nature, extent and value of the person’s interest in the
property concerned, the nature, extent and value of the any other
person interest claimed in the property, and any other matter that
the court considers relevant.

Clause 53 provides
that the court must specify in any forfeiture order, the value of
any property (other than money) specified in the order.

Clause 54 A
person may buy back forfeited property

This clause enables
a person who had an interest in forfeited property to buy back the
interest, if the court finds, amongst other matters, that that is
not contrary to the public interest. The clause is based on
existing provisions in the Proceeds of Crime Act
1987 .

Clause 55
The court may also make supporting directions

Clause 55 provides
that if the court makes a forfeiture order, the court has power to
give all directions that are necessary or convenient for giving
effect to the order. Where the court makes a forfeiture order
that specifies registrable property, the court may give a direction
to an officer of the court to do what is necessary and reasonable
to obtain possession of any document necessary for the transfer of
the property. For example, if the court makes an order
forfeiting real property, it may give a direction to an officer of
the court to obtain the Certificate of Title of that property. The
clause is based on existing provisions in the Proceeds of Crime
Act 1987 .

Division 3
- How forfeiture orders are obtained

Clause
56 DPP may apply for a forfeiture order

This clause empowers
the DPP to apply for a forfeiture order. If the application
relates to a person’s conviction of an indictable offence the
application must be made before the end of the period of six months
after the conviction day.

Clause 57
Additional application for a forfeiture order

Clause 57 prohibits the DPP from applying for a
forfeiture order in particular circumstances without the leave of
the court. The prohibition prevents the DPP from seeking to
make an application for forfeiture under a clause of Division 1 of
this Part if an application has already been under that clause in
relation to the particular offence, and that application has been
finally determined. Similarly, if an application for
forfeiture has been made and finally determined in relation to an
offence under another law of the Commonwealth or a law of a
non-governing Territory, the DPP cannot apply for a Division 1
forfeiture order in relation to that offence without the leave of
the court.

Subclause 57(2) prescribes that the court may only
give leave in particular circumstances - namely if the court
finds that the property to which the new application relates was
identified only after the first application was determined,
necessary evidence became available only after the first
application was determined, or it is in the interests of justice to
grant the leave.

A forfeiture order may be a civil-forfeiture order
relating to a serious offence (clause 45), a conviction-based
forfeiture order (clause 46) or a civil-forfeiture order relating
to an indictable offence (clause 47). If one of those orders is
sought and finally determined (eg a conviction-based order under
clause 46) clause 57 prevents the DPP from making a second
application under that clause in relation to the same
offence. However, the DPP may apply for a different type of
forfeiture order (for example a civil-forfeiture order) or may seek
a LPO or PPO (as they are not forfeiture orders). Clause
57(3) makes this clear.

Clause 58
Notice of application

This clause requires
the DPP to give written notice of an application for a forfeiture
order to a person whose conviction of an offence has led to the
application.

The DPP must also
give notice to any person who claims an interest in property
covered by an application and to any person who the DPP reasonably
believes may have an interest in that property. In
addition, the court may direct the DPP to give or publish notice of
an application to a specified person or class of persons at any
time before the court finally determines the application, and may
specify the time and manner of publication.

Clause 59
Amending an application

Clause 59 provides
that the court hearing an application for a forfeiture order may
amend the application either on the application of the DPP or with
the consent of the DPP. However, the court must not include
additional property unless the court finds either that the property
was not capable of identification when the application was
originally made, or that necessary evidence became available after
the application was originally made. The DPP must give
written notice of an application for an amendment to include
additional property in the application for a forfeiture order to
any person who the DPP believes has an interest in that additional
property. Any person who claims an interest in that
additional property may appear and adduce evidence at the hearing
of the application to amend.

Clause 60
Procedure on application

Clause 60 provides
for matters of procedure in the hearing of an application for a
forfeiture order.

Subclause 60(1) provides that any person who claims
an interest in property included in an application for a forfeiture
order may appear and adduce evidence at the
hearing.

Subclause 60(2) provides that, in respect of an
application for a forfeiture order that relies on a person’s
conviction of an indictable offence, the court may have regard to
the transcript of any proceeding against the person for that
offence or, if the person is taken to be convicted of that offence
because of the operation of paragraph 326(1)(c) (where a court has
taken account of the offence in passing sentence on the person for
another offence) any proceeding in respect of that other
offence. The court may also have regard to any evidence given
in those proceedings.

Subclause 60(3) permits the court to make a
forfeiture order if a person entitled to notice fails to appear at
the hearing.

Clause 61 Applications to
courts before which persons are convicted

This clause enables a court to
hear and determine an application for a forfeiture order made in
relation to a person who was convicted of an indictable offence
before that same court. The clause provides that in those
circumstances the court may exercise its powers in relation to the
order regardless of whether or not the court is constituted in the
same manner as when the person was convicted of the indictable
offence.

Division 4
- Effect of forfeiture orders

Clause 62
What property is forfeited and when - general
rule

Clause 62 provides
that property specified in a forfeiture order vests absolutely in
the Commonwealth at the time the order is made.

Clause 63
First exception - registrable property

This clause provides
an exception to the rule in clause 62 for registrable
property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the
Commonwealth but does not vest in the Commonwealth at law until the
registration requirements have been completed. Paragraph
63(1)(b) gives the DPP power to do, on behalf of the Commonwealth,
anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property.
Paragraph 63(1)(c) provides that the Commonwealth is entitled to be
registered as owner of the property. Paragraph 63(1)(d)
provides that the Official Trustee has power on behalf of the
Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official
Trustee’s powers under this paragraph include executing any
instrument required to be executed by a person transferring an
interest in property of that kind : subclause 63(3).

Subclause 63(2)
ensures that any action by the DPP to protect the
Commonwealth’s interest in the property is not taken to be a
dealing with the property for the purposes of subclause
65(1). Subclause 65(1) prescribes when the Commonwealth can
begin to deal with forfeited property.

Clause 64
Second exception - if a joint owner dies before the order was
made

This clause provides
an exception to the rule in clause 62 (when property vests in the
Commonwealth) for property specified in a forfeiture order where a
joint owner of the property died before the forfeiture order was
made, but after the DPP applied for the order or while a
restraining order covering the property was in force.
By force of clause 64 the property is taken to have vested in the
Commonwealth immediately before the person’s death. Any
restraining order is also taken to have continued to apply to the
property as if the person had not died. The effect of this
clause is that the property does not form part of the
deceased’s estate.

Clause 65
When can the Commonwealth begin dealing with forfeited
property?

This clause prescribes when the
Commonwealth and persons acting on its behalf can dispose of, or
otherwise deal with, property specified in a forfeiture
order.

Forfeited property can only be
dealt with after the end of the period in which the person could
appeal the forfeiture order - if such an appeal has been
lodged, the property can not be dealt with until the appeal lapses
or is finally determined. Where the forfeiture order was made
in relation to the person’s conviction (ie under clause 46),
the property may only be forfeited at the end of the appeal period
in relation to the person’s conviction for an offence.
Again, if an appeal has been lodged the property cannot be dealt
with until that appeal is determined.

Those provisions ensure that
property is not dealt with prematurely, as some property may not be
recoverable once dealt with (eg a house or other unique
possession). However, if there is cause to dispose or deal
with the property prior to the latter of the times set out in
subclause 65(1), subclause 65(2) enables early dealing to occur as
long as the court gives leave and the dealing is made in accordance
with any directions of the court.

Where the person is taken to have
been convicted by reason of paragraph 326(1)(b) (the person is
charged with, and found guilty of the offence but is discharged
without conviction) an appeal against the finding of the person
guilty of the offence is regarded as an appeal against the
conviction. Where the person is taken to have been convicted
of the offence by reason of paragraph 326(1)(c) (the offence is
taken into account in sentencing for another offence) an appeal
against the person’s conviction of the other offence is
regarded as an appeal against the conviction.

Clause 66
How must the Commonwealth deal with forfeited property?

This clause provides for the way
in which the Commonwealth must deal with forfeited property. If the
forfeiture order is still in force at the end of the later time
mentioned in subclause 65(1), the Official Trustee (on the
Commonwealth’s behalf) must, as soon as practicable, dispose
of any property specified in the order that is not money. The
Commonwealth must then apply any amount received from that
disposal, and any money specified in the order, to payment of its
remuneration, costs charges and expenses in connection with the
disposal and with any restraining order that covered the property
and pay the balance to the Reserve in accordance with clause
293.

Subclause 66(2) provides that,
where the Official Trustee is required to deal with the property
specified in a forfeiture order but has not yet begun to deal with
the property, the Minister or a senior Departmental officer authorised for the
purposes of the subclause may direct that the property be
alternatively disposed of or otherwise dealt with. Such a
direction may be that property be disposed of in accordance
with provisions of a specified law. That means that under
subclause 66(2) the Minister retains a power to direct that
forfeited property be disposed of in some particular way, for
example that it be made available for use by a law enforcement
agency for operational purposes but ultimately sold and the
proceeds paid into the Confiscated Assets Account. That
subclause adopts a similar provision to subsections 20(3A) and (4)
of the Proceeds of Crime Act 1987 .

Clause 67 Dealings with
forfeited property

Clause 67
creates an offence of dealing with registrable property which is
subject to a forfeiture order before registration of the
Commonwealth’s interest, knowing it to be subject to a
forfeiture order. That clause is based on section 97 of
the Proceeds of Crime Act 1987 .

Division 5 - Reducing
the effect of forfeiture orders

Subdivision A
- Relieving hardship

Clause 68
Relieving certain dependants from hardship

This clause enables a dependant of
a person whose property is the subject of a civil-forfeiture order
(whether based on a serious offence or an indictable offence) to
seek payment from the Commonwealth to compensate that person for
the hardship that would be caused by the forfeiture
order.

Such an order must specify the
amount to be paid, and the court must be satisfied that the amount
would relieve the hardship.

Where the dependant is aged 18 or
over, the court must also be satisfied that the dependant had not
knowledge of the conduct the subject of the order. The court
may make an order in respect of more than one
dependant.

The specified amount cannot exceed
the difference between the amount the court considers likely to be
received from disposing of the person’s property under the
forfeiture order and the sum the court considers likely to be paid
under paragraph 66(1)(b) (payment of the OT’s costs,
remuneration etc).

Subdivision B
- Excluding property from a forfeiture order

Clause 69
Making exclusion orders

This clause provides for a court
to make orders excluding specified property from a forfeiture
order. An exclusion order is made on application by a person
whose property is specified in the forfeiture order or the
forfeiture application. The application is made to the
court that made a forfeiture order, or is hearing or is to hear an
application for a forfeiture order.

Civil-forfeiture

The court must make
an exclusion order on application by a person if the forfeiture
order or forfeiture application would be, or is, made against that
person under either clause 45 (civil-forfeiture based on conduct
constituting a serious offence) or clause 47 (civil-forfeiture
based on conduct constituting an indictable offence), and the court
is satisfied that the property sought to be excluded is not the
proceeds of ‘unlawful activity’. ‘Unlawful
activity’ is defined to include State, Northern
Territory and ACT indictable offences, as well as indictable
offences against the laws of the Commonwealth, external Territories
and foreign countries.

Civil-forfeiture : third
parties

Where the applicant for an
exclusion order is not the person against whom the civil forfeiture
order was made, the court must exclude property if it is satisfied
that the person was not involved in the offence or offences to
which the order relates. In addition, the court must be
satisfied that the property to be excluded is not the proceeds of
unlawful activity.

Conviction-based
forfeiture

If the forfeiture order, or
application for forfeiture, is made under clause 46
(conviction-based forfeiture), the court must be satisfied that the
applicant was not in any way involved in the commission of any of
the offences to which the forfeiture order or forfeiture
application relates. In addition, the court must be satisfied
that the property to be specified in the exclusion order is neither
proceeds nor an instrument of any of those
offences.

Subclause 69(2) sets out the
matters that must be contained in an exclusion order. An
exclusion order must specify the nature, extent and value of the
property of the property concerned. It must direct that the
property be excluded from the operation of the relevant forfeiture
order. If the property has vested in the Commonwealth and is
yet to be disposed of, the order must direct the Commonwealth to
transfer the property to the applicant. If the property has
vested in the Commonwealth and has been disposed of, the order must
direct the Commonwealth to pay the applicant an amount equal to the
value specified in the order.

Clause 70
Applying for exclusion orders

Clause 70 sets out the
circumstances when a person may apply for an exclusion
order.

Before a forfeiture order has been
made

Prior to a forfeiture order being
made, a person may apply for an exclusion order in respect of
property the subject of the forfeiture application.

After a forfeiture order has been
made

Once a forfeiture order has been
made, a person who was afforded notice of the application for the
order but did not appear at the hearing must seek the leave of the
court to apply for an exclusion order : paragraph 70(2)(a).
In that circumstance, the court may grant leave to apply for an
exclusion order if it finds that the person did not attend the
hearing for a good reason : paragraph 70(3)(a).

The leave of the court must also
be sought by a person who did attend the hearing of the
application, or a person who wishes to make an application for
exclusion more than six months after the date of the forfeiture
order : paragraphs 70(2)(b) and (c).

Where the person appeared at the
hearing of the application for the forfeiture order, the court may
give leave if the court finds that the person now has relevant
evidence in connection with the application that was not available
to the person at the time of the hearing of the application for the
forfeiture order : paragraph 70(3)(b). If more than six
months have elapsed, the court may give leave to apply if the court
finds that the person’s failure to apply was not due to any
neglect by the person : paragraph 70(3)(c). Paragraph
70(3)(d) enables the court to also give leave to apply if there are
other special grounds for granting the leave.

Clause 71
Giving notice of matters relevant to an application

Clause 71 provides that an
applicant for an exclusion order must give the DPP written notice
of the application and the grounds on which the order is
sought. The DPP may appear and adduce evidence at the hearing
of the application for the exclusion order. Subclause 71(2)
provides that the DPP must give the applicant notice of any grounds
on which it proposes to contest the application. However, the
DPP does not have to give notice of the grounds until it has had a
reasonable opportunity to examine the applicant under Part
3-1.

Clause 72
When an application can be heard

Clause 72 provides that an
application for an exclusion order must not be heard until the DPP
has had a reasonable opportunity to examine the applicant under
Part 3-1.

Subdivision C
- Compensating for the proportion of property that did not
involve proceeds of an offence

Clause 73
Making compensation orders

Clause 73 ensures that where
property forfeited as proceeds under a forfeiture order was
acquired with both the proceeds of an offence and legitimately
obtained funds, the owner of the forfeited property is properly
compensated for that legitimately obtained part of the
property.

For this to occur, the court must
be satisfied that when the property first became proceeds of an
offence, a proportion of the value of that property was not
acquired using the proceeds of any offence. Once the court is
satisfied of this (on the civil standard), the court is compelled
to make a compensation order : subclause 73(1).

The order must specify the
proportion of the value of that property that was not acquired
using the proceeds of any offence, and direct the Commonwealth to
dispose of the property and pay the applicant that proportion of
the sum received after the costs and disbursements of the OT are
paid.

For example, if the forfeited
property was a $200 000 house which had been obtained with $150 000
from the proceeds of an offence and $50 000 from legitimately
obtained income, the person would be entitled to 25% of the value
of the house. After the house is disposed of and the costs
etc of the OT have been met (as set out in paragraph 66(1)(b)), the
person would be entitled to compensation equal to 25% of the net
amount.

Clause 74
Applying for compensation orders

Clause 74 provides that a person
whose property is specified in a forfeiture order may apply for a
compensation order but the person must apply for the compensation
order within six months after the forfeiture order was made or
obtain leave from the court to apply for the compensation
order.

Clause 75
Giving notice of matters relevant to an application

Clause 75 provides that an
applicant for a compensation order must give written notice to the
DPP of the application and the grounds on which the order is
sought. The DPP may appear and adduce evidence at the hearing
of the application. The DPP must give the applicant notice of
the grounds on which it proposes to contest the
application.

Division 6 - The effect
on forfeiture orders of convictions being quashed

Clause 76 Forfeiture order made under section
45 or 47 unaffected by quashing of conviction

Where a civil-forfeiture order is
made against a person in respect of a particular offence, the
person’s conviction of that offence and subsequent quashing
of that conviction does not affect the forfeiture order. This
applies to both civil forfeiture based on conduct constituting a
serious offence (clause 45) and civil forfeiture based on conduct
constituting an indictable offence where there is an identified
suspect and offence (clause 47).

Clause 77 Discharge of forfeiture order made
under section 46 on quashing of conviction

Clause 77 provides that a
conviction-based forfeiture order (made under clause 46) is
discharged 14 days after the subsequent quashing of the conviction
unless the DPP has applied for an order confirming the forfeiture
within that time. If the DPP makes such an application, the
forfeiture order is not affected by the quashing of the conviction
until that application is determined.

Clause 78 Notice of application
for confirmation of forfeiture order

Clause 78 requires
the DPP to give written notice of the application for confirmation
of the forfeiture order to the person whose conviction was quashed,
to any person who claims or claimed an interest in the property
prior to the forfeiture, and to any other person who the DPP
reasonably believes may have had an interest in the property prior
to the forfeiture. A court may also direct the DPP to publish
notice of the application in a specified time and
manner.

Clause 79 Procedure on
application for confirmation of forfeiture order

Clause 79 enables
any person claiming an interest in the property covered by the
forfeiture order to appear and adduce evidence at the hearing of
the application for confirmation of that order. The clause
also empowers the court determining the application to have regard
to the transcript of proceedings against the person for the
offence, and any evidence given in those proceedings, of which the
person was convicted.

Clause 80 Court may confirm
forfeiture order

Clause 80 empowers a
court, on the application of the DPP, to confirm the forfeiture
order relating to a conviction which has been quashed if it is
satisfied that it could have made a civil forfeiture order in
relation to either the person or the property under clause 45 or
clause 47.

Clause 81 Effect of
court’s decision on confirmation of forfeiture
order

Clause 81 sets out
the effect of the court’s decision to confirm or not confirm
a forfeiture order.

If the court
confirms that forfeiture order on the basis that it could have made
a civil-forfeiture order based on conduct constituting a serious
offence in relation to the offence for which the person’s
conviction has now been quashed, subclause 81(1) provides that the
entire forfeiture order is not affected by the quashing.

However, if the
court confirms the forfeiture order on the ground that it could
have made an civil forfeiture order based on conduct constituting
an indictable offence in relation to the particular offence, the
forfeiture order remains in force only to the extent that it covers
the proceeds of that offence. If the order covers other
property, it is discharged in relation to that property.

Subclause 81(3)
provides that where the court declines to confirm the forfeiture
order, the entire order is discharged.

Clause 82
Official Trustee must not deal with forfeited property before the
court decides on confirmation of forfeiture order

Clause 82 prevents the Official Trustee from dealing
with property forfeited under a forfeiture order between the date
of the quashing of the conviction to which the forfeiture order
relates and the determination of an application for confirmation of
that order.

Division 7 -
Miscellaneous

Clause 83
Giving notice if a forfeiture order is discharged on appeal or by
quashing of a conviction

Where a forfeiture order relating to particular
property is discharged, clause 83 requires the DPP to give written
notice of that discharge to anyone the DPP believes had an interest
in that property prior to the forfeiture order being made. In
addition, the court may direct the DPP to publish notice to a
specified person or class or persons, or in a specified time and
manner. The notice must advise the person of their
right to apply for the transfer of the interest or its
value.

Clause 83 applies whether the forfeiture order was
discharged on appeal against the order, or wholly or partly
discharged due to the conviction of which the order was made being
quashed : paragraphs 83(1)(a)-(c).

Clause 84 Returning property
etc. following the discharge of a forfeiture order

Where a forfeiture order is discharged on appeal or
by the quashing of a conviction, clause 84 requires the Minister to
arrange for the return of interests in property forfeited under a
forfeiture order. If the interest is no longer vested in the
Commonwealth (and thus cannot be returned) the Minister is required
to arrange for the payment to the person of an amount equal to the
value of the person’s interest.

Clause 85
Person with interest in forfeited property may buy back the
interest

Where the court has ordered the transfer of an
interest in forfeited property to a person pursuant to clause 54,
clause 85 facilitates the return of that property upon payment by
the person to the Commonwealth of the value of that interest.
This clause is based on subsections 33(2), (3) and (4) of the
Proceeds of Crime Act 1987, and equates to clause 100 in
relation to automatic forfeiture.

Clause 86
Buying out other interests in forfeited property

Clause 86 enables a person who has had an interest in
forfeited property returned to him or her (either as a result of an
order of the court under clause 84(1) or clause 85, or a direction
under sub-paragraph 69(2)(c)) to purchase other interests in the
property which remain forfeited if the previous owner of each of
those interests does not object upon being given 21 days
notice. This clause equates to clause 101 in relation to
automatic forfeiture.

Part 2-3
- Forfeiture on conviction of a serious
offence

Clause 87
Simplified outline of this Part

This clause gives a
basic outline of the ‘automatic forfeiture’ provisions,
which apply on a conviction of a serious offence, contained in this
Part of the Bill.

Division 1 - Forfeiture
on conviction of a serious offence

This Division
provides for automatic forfeiture of restrained property, on the
conviction of a person of a serious offence, without the necessity
of a court order.

Clause 88 Forfeiting restrained
property without a forfeiture order if a person has been convicted
of serious offence

Clause 88 provides for the forfeiture of restrained
property without a forfeiture order in certain circumstances
(‘automatic forfeiture’).

Automatic forfeiture can only occur where the suspect
has been convicted of a serious offence. In addition, to be
liable to forfeiture the property must be either the subject of a
restraining order, or the subject of a restraining order which was
fully or partially revoked upon the provision of security or an
undertaking pursuant to clause 42. The restraining order does
not need to have been in place at the time of conviction, and
provided the restraining order was made in relation to the person
convicted of the offence, the property may be the property of that
person or a third person.

Automatic forfeiture occurs at the end of the period
of six months from the date of conviction. However, that time
limit may be extended under clause 89.

The automatic forfeiture provisions do not apply to a
person who has been convicted of the offence by virtue of having
absconded as mentioned in paragraph 326(1)(d).

Under subclause 88(5) the restraining order does not
have to have been made in relation to the specific offence of which
the person was convicted. It is sufficient if it was made in
relation to a related offence of which the person had been, or was
proposed to be, charged at the time of the making of the
order. This clause ensures that where a restraining order is
made in the early stages of proceedings against a person in order
to prevent dissipation of assets a new order does not have to be
made if the offence with which the person is ultimately charged, or
the charges which are ultimately proceeded with against the person,
differ from those on which the restraining order was based,
provided they relate to the same criminal activities or
conduct.

Clause 89
Making an extension order extending the period before property is
forfeited

Clause 89 enables a person to apply for an order
extending the six month period after which automatic forfeiture
will occur. The person must make an application within six months
from the day of the conviction, must have applied to have the
property excluded from the restraining order under clause 31, and
must satisfy the court that he or she made the clause 31
application diligently and without undue delay. This
requirement ensures that the provision is relied upon only where
there is a genuine case for the exclusion of the property, rather
than as a delaying tactic.

The court may grant an extension of nine months,
giving a total of 15 months from the date of conviction. The
extension period ends upon the final determination of the clause 31
application.

Clause 90 Excluding property
from forfeiture under this Part

Subclause 90(1) enables the person who has been
convicted of a serious offence, and whose property has been
restraining in relation to that offence, to apply for an order
excluding particular property from automatic forfeiture under
clause 88. Such an application can be made at any time during
the duration of the restraining order. The court can make the
order if satisfied that the property is not the proceeds of
unlawful activity, or an instrument of unlawful activity. The
restraining order will remain in force in respect of the property
to preserve it against the contingency that a pecuniary penalty
order is made in respect of the property. This clause is
based on subsection 48(4) of the Proceeds of Crime Act
1987.

Subclauses 90(2), (3) and (4) require the applicant
to give the DPP notice, empower the DPP to appear and adduce
evidence at the hearing of the application, and require the DPP to
give the applicant notice of the grounds on which it proposes to
contest the application.

Division 2
- Effect of forfeiture on conviction of a serious
offence

Clause 91 When is property forfeited -
general rule

Clause 91 provides that property which is
automatically forfeited under clause 88 vests absolutely in the
Commonwealth at the time of forfeiture. There is an exception
in relation to registrable property under clause 92. Clause
91 is based on subsection 30(2) of the Proceeds of Crime Act
1987 .

Clause 92 First exception
- registrable property

This clause provides
an exception to the rule in clause 91 for registrable
property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the
Commonwealth but does not vest in the Commonwealth at law until the
registration requirements have been completed. Paragraph
92(1)(b) gives the DPP power to do, on behalf of the Commonwealth,
anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property.
Paragraph 92(1)(c) provides that the Commonwealth is entitled to be
registered as owner of the property. Paragraph 92(1)(d)
provides that the Official Trustee has power on behalf of the
Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official
Trustee’s powers under this paragraph include executing any
instrument required to be executed by a person transferring an
interest in property of that kind : subclause 92(3).

Subclause 92(2)
ensures that any action by the DPP to protect the
Commonwealth’s interest in the property is not taken to be a
dealing with the property for the purposes of subclause
94(1). Subclause 92(1) prescribes when the Commonwealth can
begin to deal with forfeited property.

This clause is based on subsections 30(3) and (3A) of
the Proceeds of Crime Act 1987 .

Clause 93 Second exception - if a joint
owner dies

This clause provides a second exception to the rule
in clause 91 (when property vests in the Commonwealth). The
exception applies where a person who is convicted of a serious
offence is a joint owner of property which is liable to automatic
forfeiture under clause 88, and that person dies before forfeiture
occurs (ie the person dies before the end of the period set out in
88(3), at which time the property is automatically
forfeited).

If at the end of the relevant period the property
would have been forfeited under clause 88, clause 93 deems it to
have vested in the Commonwealth immediately before the death of the
person.

Clause 94
When can the Commonwealth begin dealing with forfeited
property?

Clause 94 prevents the Commonwealth disposing of, or
otherwise dealing with property forfeited under clause 88, until
either the appeal period in relation to the conviction has expired
without the lodging of an appeal, or an appeal which was lodged
within that period has been finally determined without the
conviction having been quashed. This clause is based on
sections 30(4), (8) and (9) of the Proceeds of Crime Act
1987 .

Clause 95 How must forfeited
property be dealt with?

Clause 95 enables
the Official Trustee to realise property on behalf of the
Commonwealth. Subclause 95(1) provides that the Official
Trustee (on the Commonwealth’s behalf) must, as soon as
practicable, dispose of any forfeited property that is not money
and apply any amount received from that disposal, and any forfeited
money to payment of its remuneration, costs charges and expenses in
connection with the disposal and with any restraining order that
covered the property and pay the balance to the Reserve in
accordance with clause 293. The clause is based on
subsections 30(4) of the Proceeds of Crime Act
1987 .

Subclause 95(2)
provides that, where the Official Trustee is required to deal with
property but has not yet begun, the Minister or a senior
Departmental officer authorised for the purposes of the subclause
may direct that the property be alternatively disposed of or
otherwise dealt with. Such a direction may be that
property be disposed of in accordance with provisions of a
specified law. That means that under subclause 95(2) the
Minister retains a power to direct that forfeited property be
disposed of in some particular way, for example that it be made
available for use by a law enforcement agency for operational
purposes but ultimately sold and the proceeds paid into the
Confiscated Assets Account. That subclause adopts a similar
provision to subsections 30(4A) and (5) of the Proceeds of Crime
Act 1987 .

Clause 96 Minister may give
supporting directions

Clause 96 enables
the Minister to give directions in relation to the realisation and
registration of forfeited property. This clause is based on
subsections 30(6) and (7) of the Proceeds of Crime Act
1987.

Division 3
- Recovery of forfeited property

Clause 97
Court may make orders relating to transfer of forfeited property
etc.

Clause 97 enables a
court to make an order declaring the nature, extent and value of
the interest of an applicant under clause 88 (a person who has made
an application to have property excluded from forfeiture after
forfeiture has occurred), and to direct the Commonwealth to
transfer the interest back to the applicant if it is still vested
in the Commonwealth, or to pay the applicant an amount equal to the
value of that interest if it is no longer vested in the
Commonwealth.

Such an order may be
made where the court is satisfied either that the applicant was not
involved in the commission of the offence and (if the property was
acquired during or after the commission of the offence) that the
interest in property was obtained for sufficient consideration and
without knowledge or grounds for reasonable suspicion that the
property was the proceeds of or an instrument of the offence.
An order may also be made under clause 97 if the property was not
used in or derived from unlawful activity and the applicant’s
interest was lawfully acquired.

This clause is based
on subsection 31(6) of the Proceeds of Crime Act
1987 .

Clause 98 Court may make orders
relating to buying back forfeited property

Clause 98 enables a
court to make an order declaring the nature, extent and value of
the interest of an applicant under clause 88 (a person who has made
an application to have property excluded from forfeiture after
forfeiture has occurred), and permitting that person to buy back
property which has been forfeited under clause 88 on payment to the
Commonwealth of an amount equal to the value of that
property. Such an order may be made where the court is
satisfied that it would not be contrary to the public interest, and
there is no other reason why the interest should not be so
transferred. This clause is based on subsection 31(7) of the
Proceeds of Crime Act 1987 .

Clause 99 Applying for orders
under sections 97 and 98

Clause 99 provides
that a person whose property has been forfeited under clause 88
must apply to the court within six months of the forfeiture (or
such longer period as the court allows) for an order under clauses
97 or 98. Such an application may be made by either the
person convicted of the offence or a third party whose property is
forfeited. The court may grant leave to apply after the end
of the period if the court is satisfied that the delay in making
the application is not due to neglect on the part of the
applicant.

A person who was
given notice of either the application for, or the making of, the
relevant restraining order can only appear with the leave of the
court. Again, the court may only grant that leave if it is
satisfied that the person’s failure to seek to have the
property excluded from the order was not due to his or her
neglect.

The time
restrictions in this clause ensure that, where possible, the
restraining order is challenged and interests in property are
determined, before forfeiture. This clause is based on
subsections 31(1), (2), (3), (4) and (5) of the Proceeds of
Crime Act 1987.

Clause 100 Person with
interest in forfeited property may buy back the
interest

Clause 100
facilitates the return to a successful applicant for an order under
84 of property which the court has ordered be transferred to that
person, which remains vested in the Commonwealth, upon payment of
the value of that interest. This clause is based on
subsections 33(2), (3) and (4) of the Proceeds of Crime Act
1987 , and equates to clause 85 in relation to forfeiture orders
under Part 2-2.

Clause 101 Buying out other
interests in forfeited property

Clause 101 enables a
person who has had an interest in forfeited property returned to
him or her (either as a result of an order of the court under
clause 97 or under an order under clause 90) to purchase other
interests in the property which remain forfeited if the previous
owner of each of those interests does not object upon being given
21 days notice. This clause equates to clause 86 in relation
to forfeiture orders under Part 2-2.

Division 4
- The effect on forfeiture of convictions being
quashed

Clause
102 The effect on forfeiture of convictions being
quashed

Clause 102
provides that an automatic forfeiture of property under clause 88
ceases to have effect 14 days after the quashing of the conviction
to which the restraining order relates unless the forfeiture
relates to other convictions which have not been quashed, and
unless the DPP applies for an order confirming the forfeiture
within that time. If the DPP makes such an application, the
forfeiture is not affected by the quashing of the conviction until
that application is determined.

Clause 103
Notice of application for confirmation of forfeiture

If the DPP applies
for confirmation of the forfeiture, written notice must be supplied
to the person whose conviction was quashed, any person who claims,
or has claimed, an interest in the forfeited property and any
person who the DPP believes may have had an interest in the
forfeited property prior to the forfeiture.

In addition, the
court may direct the DPP to provide notice of the application to a
specified person or class of persons. The court may make this
direction at any time before the application is determined; the
court may also specify the time and manner of publication of the
notice.

Clause 104 Procedure on
application for confirmation of forfeiture

Clause 104 enables
any person claiming an interest in the forfeited property to appear
and adduce evidence at the hearing of the application for
confirmation of the forfeiture, and empowers the court determining
the application to have regard to the transcript of proceedings
against the person for the offence, and any evidence given in those
proceedings, of which the person was convicted.

Clause 105 Court may confirm
forfeiture

Clause 105 empowers
a court, on the application of the DPP, to confirm the forfeiture
relating to a conviction which has been quashed if it is satisfied
that it could make a civil forfeiture order in relation to either
the person or the property under either clause 45 or clause 47 if
the DPP were to apply for an order under either of those
clauses.

Clause 106 Effect of
court’s decision on confirmation of forfeiture

Clause 106 sets
out the effect of the court’s decision to confirm or not
confirm a forfeiture.

If the court
confirms that forfeiture on the basis that it could have made a
civil-forfeiture order based on conduct constituting a serious
offence in relation to the offence for which the person’s
conviction has now been quashed, subclause 106(1) provides that the
entire forfeiture is not affected by the quashing.

However, if the
court confirms the forfeiture on the ground that it could have made
a civil forfeiture order based on conduct constituting an
indictable offence in relation to the particular offence, the
forfeiture remains in force only to the extent that it covers the
proceeds of that offence. If the forfeiture covers other
property, it is discharged in relation to that property.

Subclause 106(3)
provides that where the court declines to confirm the forfeiture,
the forfeiture is discharged.

Clause 107
Official Trustee must not deal with forfeited property before the
court decides on confirmation of forfeiture

Clause 107 prevents the Official Trustee from dealing
with property forfeited under clause 106 between the date of
quashing of the conviction to which the forfeiture relates and the
determination of an application for confirmation of the
forfeiture.

Clause
108 Giving notice if forfeiture ceases to have effect on
quashing of a conviction

Clause 108 requires the DPP to give written notice of
a forfeiture ceasing to have effect on the quashing of a conviction
(either because the DPP has not made an application for
confirmation of forfeiture within 14 days of the quashing of the
conviction, or because a court has declined to confirm the
forfeiture), to any person the DPP reasonably believes may have had
an interest in that property immediately before the forfeiture, or
to publish notice in a specified time and manner, if required to do
so by a court. The notice must advise the person of their
right to apply under clause 109 for the transfer of the interest or
its value.

Where automatic forfeiture ceases to have effect
under clause 102 or 106, clause 109 requires the Minister to
arrange for the return of interests in property forfeited under
clause 88. If the interest is no longer vested in the
Commonwealth (and thus cannot be returned) the Minister is required
to arrange for the payment to the person of an amount equal to the
value of the person’s interest.

Part 2-4 - Pecuniary
Penalty Orders

Clause 110
Simplified outline of this Part

This clause gives a
basic outline of the pecuniary penalty order provisions, which can
apply whether or not a person has been convicted of an offence,
contained in this Part of the Bill.

Division 1 - Making pecuniary
penalty order

Clause 111 Making pecuniary penalty
orders

Subclause 111(1)
empowers a court to make a pecuniary penalty order (PPO) in certain
circumstances. A PPO is an order that requires a person to
pay an amount of money to the Commonwealth, where the court is
satisfied that the person has derived a benefit from the commission
of an indictable offence.

Under paragraph
111(1)(a), only the DPP can apply to the court for a
PPO.

To make a PPO, the
court must be satisfied either that the person has been convicted
of an indictable offence and has derived benefits from the
commission of that offence, or that the person has committed a
serious offence within the six years preceding the application or
the application for a restraining order: paragraph
111(1)(b).

In assessing whether
the person has derived a benefit, subclause 111(2) enables the
court to take into account property that the court considers is
under the effective control of the person against whom the PPO is
sought. A PPO may be sought and made even if another
confiscation order has been made in relation to the
offence.

This clause
establishes when a PPO may be made against a person in relation to
the person’s conviction for a serious offence.

Subclause 112(1)
prohibits a court from making a PPO within six months of the
person’s conviction. This time enables appellate
procedures to take place, and is the same period that must lapse
before automatic forfeiture can occur under clause 88.

Subclause 112(2)
provides that the rule in subclause 112(1) does not apply where the
conviction of the person for the serious offence is a deemed
conviction pursuant to paragraph 326(1)(d). That paragraph deems a
person who has absconded prior to the hearing of the offence with
which they were charged to have been convicted of that
offence. The procedure for making a PPO against such a person
is set out in clause 113.

Clause 113 Making of pecuniary
penalty order if person has absconded

Clause 113 imports
two additional elements of which the court must be satisfied before
a PPO can be made against a person deemed to have been convicted of
an indictable offence by virtue of the operation of paragraph
326(1)(d).

First, the court
must be satisfied, to the civil standard, that the person did
abscond (as defined) in connection with the indictable offence:
paragraph 113(a).

Secondly, either of the elements
set out in paragraph 113(b) must occur: the person must have
been committed for trial for the offence, or the court hearing the
application for the PPO must be satisfied that on the available
evidence a reasonable jury could lawfully find the person guilty of
the offence.

This ensures that a PPO is made
only after a court has assessed the evidence of the offence, thus
preventing a PPO being made in circumstances where there was
insufficient evidence to require the person to stand trial for the
offence.

Clause 114
Ancillary orders

This clause enables
a court to make an order ancillary to a PPO, at either the time the
order is made or at a later time.

Division 2 - Penalty
amounts

This division sets out the relevant things
that a court will take into account in determining the amount that
a person will be ordered to pay to the Commonwealth pursuant to a
PPO.

Subdivision A
- General

Clause 115 Determining penalty
amounts

Clause 115 sets out
the basic equations which the court must apply to reach the final
penalty amount. A different formulation is used depending on
whether the offence is a serious or non-serious offence.

If the offence to
which the order relates is a non-serious indictable offence, the
court must assess the value of the benefits the person derived from
the commission of the indictable offence in accordance with the
matters set out in Subdivision B. The court must then assess
the value of any deductions available to the person pursuant to
Subdivision C, and reduce the value of the benefits gained by the
person by that amount.

If the relevant
offence is a serious offence, the same basic equation is
followed. However, the benefits taken into account pursuant
to Subdivision B are not limited to those derived from the
particular offence, but extend to any benefits the person has
derived from any unlawful activity within the period commencing six
years before either the application for the PPO or the application
for a restraining order if one is in place, and the date of
determining the penalty amount. ‘Unlawful
activity’ is defined in Part 6-2 to include state and
territory indictable offences, as well as offences against the laws
of a foreign country.

Subdivision B
- the value of benefits derived from the commission of the
offence

Clause 116 Evidence the court
is to consider

When assessing any
benefit that a person may have derived from the commission of an
indictable offence, subclause 116(1) directs the court to have
regard to any evidence before the court of a number of
things. Those are set out in paragraphs
116(1)(a)-(e).

Pursuant to
paragraph 116(1)(a), the court must have regard to the money that
came into the control of the person from the commission of the
offence. Where the person gains property, not money, from the
commission of the offence, the court must look at the value of the
property. As a PPO is a monetary penalty, and does not
directly provide for the forfeiture of property, the court is
interested only in the value of the property, not the actual
property per se . This paragraph also enables the court
to have regard to the value of any money or property derived from
the offence that come into the possession of a third party at the
request of the offender.

Pursuant to
paragraph 116(1)(b), the court must also have regard to the value
of any other benefit that was provided to the person or third party
due to the commission of the offence. This enables the court
to look at the value of any services or other non-monetary benefits
or payment in kind that the person or third party may have
received.

Where the indictable
offence related to an act or thing done by the person in relation
to a narcotic substance, paragraph 116(1)(c) enables the court to
have regard to both the market value of the narcotic substance, and
the value of the act or thing which the person did. The court
assesses the value of the narcotic and act or thing as at the time
of the offence, and is able to base the valuation on a
similar or substantially similar narcotic, or act or thing.
In addition, the court may have regard to a range of amounts
ordinarily paid for the act or thing. The court is given some
leeway in those assessments in recognition of the difficulty of
establishing the value of something for which there is no
legitimate market or easily discernible benchmark.

Pursuant to
paragraph 116(1)(d), the court must also have regard to the value
of the person’s property before, during and after the
relevant offence. The court may also have regard to the
person’s income and expenditure before during and after the
relevant offence: paragraph 116(1)(e).

Subclause 116(2)
allows a police officer or customs officer to testify at the
hearing of the application about the market value of the narcotic
substance, and the value of the act or thing which the person
did. The officer must be experienced in the investigation of
narcotics offences, and may testify to the best of his or her
information, knowledge and belief. This provision recognises
that there will often be little or no evidence to which a court can
refer in establishing the value of a narcotic at a particular time,
or the value of a person’s role or involvement in the drug
trade

Subclause 116(3)
provides that an officer’s testimony given pursuant to
subclause 116(2) is admissible at the hearing, regardless of the
laws or practice relating to hearsay evidence. In addition,
the evidence given by the officer constitutes prima facie evidence
of the matters testified to. If such evidence is given, the
person is able to lead evidence rebutting the testimony of the
officer.

Clause 117 Value of benefits
derived - non-serious offences

Subclause 117(1)
sets out how the court is to use evidence that the value of a
person’s property during or after the offence exceeded the
value of the property before the offence, when the offence or none
of the offences on which the application for the PPO is made is not
a serious offence.

Where this occurs,
the court must assess the value of the benefits that the person
derived from the commission of the offence (or offences) as being
not less that the amount of the greatest
excess.

Subclause 117(2)
provides that if the person can satisfy the court that part of the
excess was caused by something unrelated to the offence, the value
of that benefit is accordingly reduced.

Clause 118 Value of benefits
derived - serious offences

This clause applies
where an application for a PPO is based on a serious offence, or if
there are a number of offences, at least one of the offences is a
serious offence. In those circumstances, the clause provides
a presumption that where the value of a person’s property
during or after the offence or any other unlawful activity engaged
in within the relevant period (the period commencing six years
before either the application for the PPO or the application for a
restraining order if one is in place, and the date of determining
the penalty amount) exceeded the value of the property before the
offence or unlawful activity, the court must assess the value of
the benefits that the person derived from the commission of the
offence or unlawful activity as being not less than the amount of
the greatest excess.

Subclause 118(2)
provides that if the person can satisfy the court that part of the
excess was caused by something unrelated to the offence or unlawful
activity, the value of that benefit is accordingly
reduced.

In addition, where
there is evidence provided to the court regarding the
person’s expenditure during the relevant period, that amount
is presumed to be the value of a benefit provided to that person
due to his or her illegal activity.

Clause 119 Value of benefits
may be as at time of assessment

Subclause 119(1)
provides that when the court is assessing the value of a benefit,
the court may assess the benefit at the value it has at the time of
the court making its assessment.

The court may also
have regard to any decline in the purchasing power of money between
the time that the benefit was actually derived, and the time of the
assessment being made: subclause 119(2).

Clause 120 Matters that do not
reduce the value of benefits

Paragraph 120(a)
provides that in assessing the benefits accrued by the person, the
court must not reduce the value of the benefits by the expenses or
outgoings that the person incurred in committing the offence or
offences from which the benefits were derived

If the person
derived benefits on behalf of or as agent for another person, those
benefits must also not be discounted by the court.

Clause 121 Benefits already the
subject of pecuniary penalty

Clause 121 ensures
that a single benefit accrued by a person is not the subject of two
PPOs. Subclause 121(1) provides that if a pecuniary penalty
has been imposed in relation to the particular benefit either under
the Act, the Customs Act 1901 , or a State or Territory law,
the benefit cannot be taken into account for the purposes of
Subdivision B.

For the purposes of
this clause, the amount payable pursuant to a literary proceeds
order under this Act is a pecuniary penalty.

Clause 122 Property under a
person’s effective control

Clause 122 provides
that the court may treat property which it finds to be under the
effective control of the person as the property of that person, for
the purpose of assessing benefits derived from an
offence.

Clause 123 Effect of property
vesting in an insolvency trustee

Clause 123 enables
the court to treat as property of the person property which was the
property of the person, and has vested in certain trustees pursuant
to the Bankruptcy Act 1966 . The property is treated as
the property of the person only for the purpose of assessing any
benefits which the person has derived in relation to that
property. This provision does not effect the legal status of
the property.

Subdivision C
- Reducing penalty amounts

Clause 124 Reducing penalty amounts
to take account of forfeiture and proposed forfeiture

Where property has
been assessed by the court as the benefit of an offence, and at the
time of the making of the PPO, that particular property has already
been forfeited as the proceeds of that same offence, clause 124
provides that the penalty amount imposed by the PPO must be reduced
by the value of that particular property.

Forfeited property
that may be taken into account is property forfeited under the Act,
another law of the Commonwealth or a law of a Territory. This
clause applies equally where there is no forfeiture order yet made,
but it is proposed that a forfeiture order be made against the
property. For example, there may be a current application for
an order before the court.

Clause 125 Reducing penalty
amounts to take account of tax paid

Clause 125 provides
that where a person has paid tax which is attributable to the
benefits assessed by the court, the court may reduce the amount to
be paid under the PPO by an equivalent amount.

The tax which may be
taken into account by the court may be levied by the Commonwealth,
a State or Territory, or a foreign country.

Clause 126 Reducing penalty
amounts to take account of fines etc

Clause 126 enables a
court, where the court considers it appropriate, to reduce the
amount payable under the PPO by an amount equal to any fine,
restitution, compensation or damages which the person may pay in
relation to the offence.

Subclause 127(1)
provides for the court to vary a PPO by increasing the penalty
amount to be paid. The court may vary the amount only on
application by the DPP, and may only do so in two specified
circumstances. The court may entertain an application by the
DPP on both grounds at the same time.

Subclause 127(2)
allows the amount payable under the PPO to be increased where that
amount was initially reduced by the value of particular property
due to the operation of clause 124, and there is a subsequent
successful appeal against the forfeiture order, or the application
for forfeiture fails. (Clause 124 enables the court to reduce
the penalty amount if certain property has already been forfeited
or is proposed to be forfeited.) The amount by which the
court can increase the order is equal to the value of the
property.

Subclause 127(3)
allows the PPO amount to be increased where that amount was reduced
under clause 125 in relation to tax paid by the person, and that
tax is then repaid or refunded to the person. The court may
increase the order by the amount of tax repaid or
refunded.

Providing the court
with this ability to vary the order does not enable the court to
increase the overall penalty amount. Prior to the application
of clause 124 or 127, the property in question had been assessed by
the court as a benefit derived by the person from an offence; the
refund of tax or the failure of a forfeiture order in relation to
the same property should not affect that finding by the
court.

Division 3
- How pecuniary penalty orders are obtained

Clause 128 DPP may apply for a
pecuniary penalty order

This clause
authorises the DPP to apply for a PPO, and sets out the
requirements of such an application.

As with the other
confiscatory actions, only the DPP may apply for a PPO. An
application may be made in relation to one of more offences
committed by the person; an application may also be made in
relation to an offence for which a forfeiture order has been made
or applied for, or to which automatic forfeiture
applies.

Where the
application is based on the person’s conviction for an
indictable offence, the DPP must observe the time limitations set
out in subclauses 128(2) and (3). Those limitations require
the DPP to bring any application for a PPO within six months of the
conviction day or, if the offence is a serious offence, within nine
months of the date of conviction.

Clause 129 Additional
application for a pecuniary penalty order

Subclause 129(1)
prohibits the DPP from applying, without the leave of the court,
for a PPO in relation to the benefits of an offence if an
application for a pecuniary penalty has already been made and
finally determined in respect of the same benefits. This
prohibition applies whether the previous application was made under
this Division, another law of the Commonwealth or a law of a
Territory.

Subclause 129(2)
provides that if the DPP seeks the leave of the court, the court
may not grant that leave unless one of the criteria in paragraph
129(2)(a)-(c) is met. Those criteria are that either the
benefit in respect of which the DPP wishes to apply for a second
PPO was only identified after the determination of the first
application; essential evidence only came to light after the
determination of the first application for a PPO; or a second
application for a PPO is in the interests of justice.

Subclause 129(3)
provides that for the purposes of this clause an application for a
literary proceeds order is not an application for a pecuniary
penalty.

Clause 130 Notice of
application

This clause requires
the DPP to provide written notice of the application for a PPO to
the person against whom the order is being sought. In
addition, the DPP must provide a copy of the application for the
PPO and any affidavit along with the notice.

Clause 131 Amendment of
application

Clause 131
establishes how an application for a PPO may be amended.

Subclause 131(1)
provides that the court may amend the application only on
application of the DPP, or with the consent of the DPP.

If the application
for amendment is to include an additional benefit in the PPO
application, subclause 131(3) requires the DPP to provide written
notice of the application (for amendment) to the person against
whom the PPO is being sought.

Subclause 131(2)
provides that the court may amend an application for a PPO to
include an additional benefit only where either that additional
benefit was not reasonably capable of identification at the time of
making the original application, or necessary evidence only became
available after the making of the initial application. An
example of additional necessary evidence would be proof that the
benefit was derived from the offence on which the application for a
PPO was based.

Clause 132
Procedure on application

Subclause 132(1)
provides for evidence to be given by the person against whom the
PPO is sought at the hearing for the PPO.

Sub-paragraph
132(2)(a)(i) provides that where the PPO is sought on the basis of
the person’s conviction of an indictable offence, the court
may have regard to the transcripts of proceedings in relation to
that offence. The evidence given in that proceeding may also
be taken into account: paragraph 132(2)(b).

Sub-paragraph
132(2)(a)(ii) provides that where the person is taken to have been
convicted of the offence because of the operation of paragraph
326(1)(c) of the Act, the court may have regard to the transcript
of the proceedings for the ‘other offence’ referred to
in paragraph 326(1)(c). Paragraph 326(1)(c) deems a person to
have been convicted of an offence where that offence has been taken
into account (with the consent of the person) at sentencing for
another offence; no formal finding of guilt is made in relation to
the offence taken into account. The ‘other
offence’ to which sub-paragraph 132(2)(a)(ii) refers is the
offence for which the person was convicted. The evidence
given in that proceeding may also be taken into account: paragraph
132(2)(b).

Clause
133 Applications to courts before which persons are
convicted

Clause 133 enables a
court to hear and determine an application for a PPO made in
relation to a person who was convicted of an indictable offence
before that same court. The clause provides that in those
circumstances the court may exercise its powers in relation to the
PPO regardless of whether or not the court is constituted in the
same manner it was when the person was convicted of the indictable
offence.

Division 4
- Enforcement of pecuniary penalty orders

Clause 134 Enforcement of
pecuniary penalty orders

Where a PPO is made
against a person for the payment to the Commonwealth of a specified
amount of money, subclause 134(1) provides that that amount is a
debt due by that person to the Commonwealth.

Subclause 134(2)
provides that the PPO may be enforced by the Commonwealth as if it
were an order made by a court to recover a debt due by that person
to the Commonwealth. By operation of subclause 134(3), that
debt is taken to be a judgment debt.

Clause 135 Property subject to
a person’s effective control

Where the court has
made a PPO in relation to a person, the DPP may apply to the court
for an order under clause 135, declaring that all or part of
property within the effective control of that person be made
available to satisfy the PPO. The court may make such an
order where it is satisfied that the property is subject to the
effective control of the person.

Subclause 135(2)
provides that where the court makes such an order, the order may be
enforced as if the property under the effective control of the
person were the property of that person.

In addition, the
court may make a restraining order over that property:
subclause 135(3). The restraining order may be made as if the
property were the property of the person, and the person had
committed a serious offence. This enables the court to
restrain all of the property, whether or not that property is the
proceeds or instrument of the offence.

Subclause 135(4)
requires the DPP to provide notice of an application under this
clause to the person in respect of whom the PPO was made, and any
other person who the DPP believes has an entitlement to the
property. Those people may appear at the hearing of the
application, and adduce evidence (subclause 135(5)).

Clause 136 Charge on property
subject to restraining order

By force of clause
136, where both a PPO and a restraining order are made against a
person, upon the making of the later of the orders a charge is
created over restrained property to secure the payment to the
Commonwealth of the PPO. The restraining order must have been
made in relation to the offence on which the PPO was based, or a
related offence.

The charge is
created over the property of the person who is to pay the PPO and
any property over which the court has found the person has
effective control (pursuant to clause 135).

There are a number
of circumstances, set out in subclause 136(2), in which the charge
may cease to have effect. Some of those circumstances relate
directly to the PPO; others are in relation to the property the
subject of the charge. If the PPO was made in relation to a
person’s conviction, and that conviction is quashed, the
charge ceases to have effect upon the PPO being discharged pursuant
to Division 5.

It also ceases where
a person successfully appeals against either the PPO or restraining
order, and the relevant order is discharged by the court. If
the person pays out the PPO in full, or alternatively, becomes a
bankrupt, the charge ceases to have effect.

Certain sales or
disposal of property also causes the cessation of the charge.
The property may be disposed of by order of the court, by the owner
of the property with the consent of the court or (where
appropriate) the OT. Sale of the property to a purchaser for
sufficient consideration, where the person has no notice of the
charge and purchases in good faith will also cause the charge to
cease.

Subclause 136(3)
provides that a charge made under this clause is subject to all
earlier encumbrances that would otherwise have priority. For
example, if the restrained property is a house, there may be an
earlier mortgage which upon disposal of the property would be paid
out prior to payment of the PPO.

By operation of
paragraph 136(3)(b), the charge has priority over all other
encumbrances.

Paragraph 136(3)(c)
enables a charge to continue to have effect, despite any change in
ownership of the property. However, this is subject to the
matters set out in subclause 136(2). For example, if the
property was sold to a third person who paid sufficient
consideration, had no knowledge that the property was subject to
the charge, and otherwise acted in good faith, the charge would be
affected by the change in ownership by virtue of paragraph
136(2)(f). However, if the person did know of the charge,
then the conditions of paragraph 136(2)(f) would not be met, and
subclause 136(3) would apply. The property would remain
subject to the charge, and may be disposed of to satisfy the
PPO.

Clause 137 Charges may be
registered

Clause 137 provides
that where the Commonwealth, a State or Territory has a system of
registration for certain types of property the DPP may apply for a
charge created by clause 136 to be registered with the relevant
authority. Once registration is effected, any person who
purchases or otherwise acquires an interest in the property is
taken to have notice of the charge.

The most likely
property to be registered will be real property; however,
motor vehicles, boats and many other types of property also have
relevant registration systems.

Clause
138 Penalty amounts exceeding the court’s
jurisdiction

The clause provides
for the recovery of the amount specified in a PPO in circumstances
where the court that made the relevant order does not have the
jurisdiction to recover that amount.

Pursuant to
subclause 138(1), where a court makes an order that it does not
have the jurisdiction to enforce, the registrar of that court must
issue a certificate in accordance with the regulations.

Subclause 138(2)
specifies that the certificate may then be registered in a court
which has jurisdiction in relation to the recovery of the amount of
the PPO. The certificate must be registered in accordance
with the regulations.

Once the certificate
is registered, it is enforceable as a final judgment of that
court: subclause 138(3)

Division 5 - The effect on
pecuniary penalty orders of convictions being
quashed

Clause 139 Pecuniary penalty order
unaffected if not made in relation to a conviction

Clause 139 provides
that where a PPO is not made on the basis that a person was
convicted of an offence, the conviction of that person for the
offence, and subsequent quashing of that conviction does not effect
the operation of the PPO.

This clause operates
even if the conviction which is quashed is in respect of the same
offence or conduct upon which the PPO is based.

Clause 140 Discharge of pecuniary
penalty order if made in relation to a conviction

This clause provides
for the discharge in certain circumstances of a PPO made in
relation to a person’s conviction for an indictable
offence. Subclause 140(1) sets out what happens when the
conviction was for a serious offence; subclause 140(2) sets
out what happens when the conviction was for an indictable offence
that is not a serious offence.

Under subclause
140(1) a PPO made in relation to a person’s conviction of a
serious offence may be discharged where the person’s
conviction was quashed after the making of the PPO, and the DPP
does not apply to the court for the order to be confirmed.
The DPP may make such an application to the court within fourteen
days of the conviction being quashed.

If the DPP does make an
application for confirmation of the PPO, the PPO remains unaffected
by the quashing of the conviction unless and until the court
determines the application. Unless the court determines
otherwise, the PPO remains unaffected for the fourteen days
following the quashing.

Under subclause
140(3) a PPO made in relation to a person’s conviction of an
offence that is not a serious offence may be discharged where the
person’s conviction was quashed after the making of the
PPO.

The DPP cannot apply
to have the PPO confirmed where the offence was not a serious
offence. It is only where the offence is a serious offence
that the court may have made the PPO based on ‘reasonable
grounds to suspect’, which is the basis on which the court
may confirm the order under clause 143. (See clause 111 for the
grounds on which a PPO may be sought.)

Clause 141 Notice of
application for confirmation of pecuniary penalty order

This clause requires
the DPP to supply the person whose conviction has been quashed with
notice in writing of the application for confirmation of the
PPO.

Clause 142 Procedure on application
for confirmation of pecuniary penalty order

This clause sets out
who may appear at the hearing of the application for confirmation
of the PPO, and to what evidence the court may have
regard.

The person whose
conviction has been quashed may appear at the hearing of the
DPP’s application for confirmation of the PPO, and may adduce
evidence at that hearing: subclause 142(1).

Subclause 142(2) provide that the court may consider
the transcript of the proceedings for the offence which has been
quashed, as well as the appellate proceedings relating to that
offence. If the person was taken to have been convicted of
the offence because of the operation of paragraph 326(1)(c), the
court may also take into account the transcript of proceedings for
the ‘other offence’ referred to in paragraph
326(1)(c). Paragraph 326(1)(c) deems a person to have been
convicted of an offence where that offence has been taken into
account (with the consent of the person) at sentencing for another
offence; there is no formal finding of guilt in relation to the
offence taken into account. The ‘other offence’
is the offence for which the person was formally convicted; it is
the transcript of the proceedings for that offence (along with the
transcript of appellate proceedings) to which the court may have
regard.

Paragraph 142(2)(b)
provides that the court may also have regard to any evidence given
in either of those proceedings.

Clause 143 Court may confirm
pecuniary penalty order

Clause 143 enables
the court to confirm the PPO where the court is satisfied that at
the time the DPP applied for the PPO, the court could have made the
order on the basis that there were reasonable grounds to suspect
that the person had, within the last six years, committed the
offence (on which the original PPO was based).

The court must be
satisfied that it could have made the order based only on the
reasonable grounds test, and without any reliance on the fact of
the person’s conviction for that offence.

Clause 144(1)
establishes that where the court confirms the PPO on application by
the DPP, the order is not affected by the quashing of the
conviction.

Pursuant to clause
144(2), where the court does not grant the application for
confirmation of the PPO, the PPO is discharged.

Part 2-5 - Literary Proceeds
Orders

Clause 145
Simplified outline of this Part

This clause gives a
basic outline of when a literary proceeds order can be made under
Part 2-5.

Division 1
- Making literary proceeds orders

This Division
empowers a court to make a literary proceeds orders in particular
circumstances, defines literary proceeds and gives courts a
discretion as to whether or not to make such
orders.

Clause 146 Making literary
proceeds orders

Subclause 146(1)
empowers the court to make a literary proceeds order against a
person who has been convicted of an indictable offence or a foreign
indictable offence, or in relation to whom there are reasonable
grounds to suspect that he or she has committed an indictable
offence or a foreign indictable offence, who has derived literary
proceeds in relation to the offence. This clause ensures that
literary proceeds orders will be available only against persons who
were parties to the offence. Other persons involved in the
publication, for example publishers or film-makers who, in good
faith and for valuable consideration, benefit from the publication
of the product, will not be liable to such orders.
‘Foreign indictable offence’ is defined in Part 6-2 and
‘literary proceeds’ is defined in clause
147.

Subclause (2)
empowers the court, on the application of the DPP, to make an order
requiring a person who has been convicted of, or who is suspected
on reasonable grounds to have committed, a foreign indictable
offence, to pay an amount to the Commonwealth if the court is
satisfied that the person has derived literary proceeds in relation
to the offence in Australia.

A court may make a
LPO in relation to an offence even if there is another confiscation
order which relates to that offence in force.

By operation of
clause 14 of the Act, a literary proceeds order is available
whether or not the relevant offence occurred before or after the
commencement of this legislation. However, a LPO cannot be
made in relation to literary proceeds derived prior to the
commencement of this Act : subclause 146(3)

The effect of
subclauses (1), (2), (3) and (4) is that a literary proceeds order
is to be available where a person, at any time after the
commencement of the legislation, derives a benefit from the
publication of any material concerning the circumstances of an
indictable offence committed by that person whether or not he or
she was charged with or convicted of the offence, and whether or
not the offence occurred before or after commencement of the
legislation. The offence must either have been committed in
Australia, or the proceeds must have been derived in Australia, but
both conditions are not required.

Clause 147 Meaning of
literary proceeds

Clause 147 defines
‘literary proceeds’ to be any benefit that a person
derives from the commercial exploitation of his or her notoriety,
or the notoriety of his or her accomplice, resulting from the
person’s involvement in the commission of an indictable
offence or a foreign indictable offence.

Subclause (2) states
that such exploitation may take the form of a written or electronic
publication, (which would include books, newspapers, magazines,
world wide web, or other written or pictorial matter), any media
from which visual images or words or sounds can be produced (which
would include radio, film, video or television productions, compact
discs, tapes, world wide web), or any live entertainment,
representation or interview. That list is not
exhaustive. It is intended that a court may find that a
person has commercially exploited their involvement in an
indictable offence by any other means where the marketability of
the product generating those benefits is related to the
person’s involvement in the commission of an indictable
offence or a foreign indictable offences committed by the
person.

Subclause (3)
empowers a court to regard as literary proceeds any benefits
derived from the commercial exploitation of a person’s
involvement in a Commonwealth indictable offence, whether or not
that commercial exploitation took place in Australia. In
relation to a foreign indictable offence, the commercial
exploitation must have taken place in Australia - that is,
the benefits must have been derived in Australia.

Subclause (4)
empowers a court which is determining whether a person has received
literary proceeds or the value of those proceeds to regard money or
the value of property which is under the effective control of that
person, or which has been paid or transferred to another person at
the request or direction of that person, as property of that
person.

Clause 148
Matters taken into account in deciding whether to make literary
proceeds orders

To ensure that no
injustice is perpetrated by the enactment of these provisions,
clause 148 provides courts determining applications for literary
proceeds orders with a wide discretion whether or not to make such
an order. Courts may take into account any matters which they
see fit, and may look at such questions as the nature and purpose
of the publication, whether the publication was in the public
interest (for example whether it had any rehabilitative or
deterrent value), whether the publication had any social, cultural
or educational value, the seriousness of the offence, and the time
which has elapsed since the commission or alleged commission of the
offence.

Clause 149 Making of literary
proceeds order if person has absconded

Clause 326(1)(d)
enables courts to deem absconders to have been convicted of an
indictable offence in certain circumstances. Clause 149
expressly allows the making of literary proceeds orders against
such persons, but only where the court dealing with the application
is satisfied that the person has absconded and the person has
either been committed for trial or the court is satisfied that the
person could be found guilty of the offence. This clause
mirrors the provision in relation to the making of confiscation
orders against absconders under section 17 of the Proceeds of
Crime Act 1987 , and is intended to ensure that literary
proceeds orders can be made by Australian courts in relation to
literary proceeds derived by such persons even where the person is
not amenable to the jurisdiction of the
court.

Clause 150 Additional literary
proceeds orders

Clause 150 makes it
clear that more than one literary proceeds order can be made under
this Division in relation to the same offence. Thus, the DPP
can apply for a literary proceeds order on each and every occasion
on which it is considered that there has been a commercial
exploitation of the person’s involvement in an indictable
offence.

Clause 151
Ancillary orders

This clause enables
a court to make an order ancillary to a LPO, at either the time the
order is made or at a later time.

Division 2
- Literary proceeds amounts

This Division sets
out how the quantum of a literary proceeds order is to be
determined by a court dealing with an application for such an
order.

Clause 152
Determining literary proceeds amounts

Clause 152 provides
courts with a wide discretion as to the quantum of a literary
proceeds order, subject to a maximum amount and certain deductions
under clauses 153 and 154. This provision ensures that the
literary proceeds order may relate to any or all of the identified
proceeds by giving the court a discretion to treat as literary
proceeds any profits derived from the publication of any material
concerning the circumstances of an indictable offence committed by
the person, or any material concerning the person’s criminal
activities.

Subclause (2)
empowers the court assessing the quantum of a proposed literary
proceeds order to take into account the total amount of literary
proceeds derived in relation to the offence from previous
commercial exploitations of the person’s involvement in that
offence.

Subclause (3)
specifically empowers courts determining the quantum of literary
proceeds orders to have regard to the evidence adduced in any trial
for the offence and the sentencing transcript, if any. This
is similar to the existing procedure in relation to the making of
confiscation orders under section 18 of the Proceeds of Crime
Act 1987 .

Clause 153 Deductions from
literary proceeds amounts

As the proposed
order is directed at profits rather than at the total benefit
received from the commercial exploitation of a person’s
involvement in an indictable offence, subclause 153(a) requires a
court assessing the quantum of a proposed literary proceeds order
to deduct from the proceeds derived any expenses and outgoings
incurred in the receipt of the literary proceeds (for example,
legal fees associated with deriving those proceeds). It is
not intended that legal fees associated with defending the
application for forfeiture of literary proceeds are to be deducted
under this provision.

Subclauses 153(b)
and (c) further require a court assessing the quantum of a proposed
literary proceeds order to deduct from the proceeds derived any
confiscation of such profits which has already occurred under the
Proceeds of Crime Act 1987 or this Act, under section 243B
of the Customs Act 1901 , or under an interstate or foreign
forfeiture order or pecuniary penalty order to the extent that such
confiscation relates to literary proceeds, and any tax paid in
respect of such. These subclauses mirror the existing
provisions of section 27 of the Proceeds of Crime Act 1987
in relation to the making of pecuniary penalty
orders.

Subclause 153(d)
also requires the court assessing the quantum of a proposed
literary proceeds order to deduct the amount of any previous
literary proceeds order made against the person in relation to the
same offence from the proceeds derived. This subclause refers
to the situation where a person has been the subject of previous
literary proceeds orders in relation to his or her involvement in
that offence. As all the literary proceeds made by the person
are taken into account under clause 152, this clause ensures that
specific literary proceeds are not effectively confiscated
twice.

Clause 154 enables a
court assessing the quantum of a proposed literary proceeds order
to deduct from the amount received the amount of any Commonwealth,
State or foreign taxes paid which, in the opinion of the court, are
attributable to the benefits being assessed. This subclause mirrors
the existing provisions of subsection 27(4) of the Proceeds of
Crime Act 1987 in relation to the making of pecuniary penalty
orders.

Subclause 155(1)
provides for the court to vary a LPO by increasing the penalty
amount to be paid. The court may vary the amount only on
application by the DPP, and may only do so in three specified
circumstances. The court may entertain an application by the
DPP on both grounds at the same time.

Subclause 155(2)
allows the amount payable under the LPO to be increased where that
amount was initially reduced by the value of particular property
due to the operation of paragraph 153(b), and there is a subsequent
successful appeal against the forfeiture order. (Paragraph
153(b) enables the court to reduce the literary proceeds amount if
certain property has already been forfeited or is proposed to be
forfeited.) The amount by which the court can increase the
order is equal to the value of the property.

Subclause 155(3)
allows the amount payable under the LPO to be increased where that
amount was initially reduced by a particular amount due to the
operation of paragraph 153(c), and there is a subsequent successful
appeal against payment of that amount. (Paragraph 153(c)
enables the court to reduce the literary proceeds amount if a
person is to pay a certain amount pursuant to a PPO or other
pecuniary order.) The amount by which the court can increase
the order is equal to the value of the property.

Subclause 155(4)
allows the literary proceeds amount to be increased where that
amount was reduced under clause 154 in relation to tax paid by the
person, and that tax is then repaid or refunded to the
person. The court may increase the order by the amount of tax
repaid or refunded.

Providing the court
with this ability to vary the order does not enable the court to
increase the overall penalty amount. The provisions of clause
155 merely enable the court to change the literary proceeds amount
back to that amount originally assessed where one of the factors
relied upon to reduce the literary proceeds amount does not
occur.

Division 3
- How literary proceeds orders are obtained

Clause 156
DPP may apply for a literary proceeds order

This clause enables
the Director of Public Prosecutions to apply to a court for a
literary proceeds order at any time after the commission of an
offence. The application may relate to one or more
offences.

Clause 157
Notice of application

Clause 157 requires
the DPP to give notice of the application to the person against
whom the prospective order is to be made, but allows for ex
parte applications with the approval of the court.

Clause 158
Amendment of application

Clause 158 enables
an application for a literary proceeds order to be amended on the
application of the DPP, or with the consent of the DPP.

Subclause (2)
precludes the court from amending the application to include
additional literary proceeds unless the court is satisfied that
those proceeds were not reasonably capable of identification at the
time of making the application, or that the evidence necessary to
support the application has only become available since that
time. This limitation is to provide certainty to the person
against whom the application is made.

Subclause (3)
requires the DPP to give notice of the application to amend, where
the effect of the amendment would be to include additional literary
proceeds in the application, to the person against whom the order
is sought.

Clause 159
Procedure on application

This clause gives
the person against whom a literary proceeds order is sought a right
to appear and adduce evidence at the hearing of the
application. This clause reflects subsection 15(2) of the
Proceeds of Crime Act 1987 .

Clause 160 Applications to
courts before which persons are convicted

Clause 160 enables a
court to hear and determine an application for a literary proceeds
order made in relation to a person who was convicted of an
indictable offence before that same court. The clause
provides that in those circumstances the court may exercise its
powers in relation to the order regardless of whether or not the
court is constituted in the same manner as when the person was
convicted of the indictable offence.

Division 4
- Enforcement of literary proceeds orders

Clause 161
Enforcement of literary proceeds orders

This clause provides
that a literary proceeds order gives rise to a civil debt due by
the person to the Commonwealth, that that order may be enforced as
an order of the court made in civil proceedings for the recovery of
a debt due by the person to the Commonwealth, and that the debt
arising shall be taken to be a judgment debt. This clause reflects
subsections 26(8) and (9) of the Proceeds of Crime Act
1987 .

Clause 162
Property subject to a person’s effective
control

Subclause (1)
enables a court to make an order, on the application of the DPP,
that property which is under the effective control of a person
against whom a literary proceeds order has been made is to be
available to satisfy that order.

Subclauses (2) and
(3) enable the literary proceeds order to be enforced against the
property of a third person which has been declared available under
subclause (1), and enable a restraining order to be made in
relation to that property.

Subclauses (4) and
(5) require the DPP to give notice of an application for an order
under subclause (1) to both the person subject to the literary
proceeds order and any person whom the DPP has reason to believe
may have an entitlement to the property, and give any such persons
a right to appear and adduce evidence at the hearing of the
application.

Clause 163
Charge on property subject to restraining order

Subclause (1)
creates a charge over property which is subject to both a literary
proceeds order and a restraining order to secure payment to the
Commonwealth of the literary proceeds amount. In the case of
a restraining order imposed in relation to a person’s
conviction or proposed conviction or an offence, the charge will
only be created under this clause if that restraining order relates
to the offence or criminal activity to which the literary proceeds
order relates. This clause is based on subsection 50(1) of the
Proceeds of Crime Act 1987 .

Subclause (2) sets
out the circumstances in which a charge created under subclause (1)
ceases to have effect. This clause is based on subsection
50(2) of the Proceeds of Crime Act 1987 .

Under subclause (3)
a charge is deemed to be subject to every encumbrance that has come
into existence before the charge and that would otherwise have
priority, has priority over all other encumbrances, and subject to
subclause (2), is not affected by any change of ownership of the
property. This clause is based on subsection 50(3) of the
Proceeds of Crime Act 1987 .

Clause 164
Charges may be registered

Clause 164 enables
the Official Trustee or the DPP to register charges created under
clause 163 where the provisions of any Commonwealth, State or
Territory law provide for registration of such charges. A
person who subsequently acquires an interest in property which is
subject to such a registered charge is deemed to have had notice of
the charge. This clause is based on subsection 50(4) of the
Proceeds of Crime Act 1987 .

Subclauses 165(1)-(3) clarify
jurisdictional issues that may arise ensuring that courts have the
ability to deal enforce orders made under this Part.

Division 5 - The effect
on literary proceeds orders of convictions being quashed

Clause 166
Literary proceeds order unaffected if not made in relation to
conviction

Clause 166 provides
that a literary proceeds order is not affected by the quashing of a
person’s conviction for an offence unless it was made in
relation to that conviction. An order made in relation to an
offence will not be affected by the subsequent quashing of any
conviction for the offence.

Clause 167
Discharge of literary proceeds order if made in relation to
conviction

Clause 167 provides
that where a conviction in relation to which a literary proceeds
order is made is subsequently quashed and the DPP has not, within
14 days of the quashing of the conviction, applied to the court for
the order to be confirmed, the order is discharged. If the
DPP makes such an application, the order is not affected by the
quashing of the conviction until that application is
determined.

Clause 168 Notice of
application for confirmation of literary proceeds order

Clause 168 requires
the DPP to give notice of the application for confirmation of the
literary proceeds order to the person whose conviction was
quashed.

Clause 169
Procedure on application for confirmation of literary proceeds
order

Clause 169 enables
the person against whom the order was made to appear and adduce
evidence at the hearing of the application for confirmation of the
order.

Subclause (2)
empowers the court determining the application to have regard to
the transcript of proceedings against the person for the offence of
which the person was convicted or any appeal against the
conviction, together with any evidence given in those
proceedings.

Clause 170 Court may confirm
literary proceeds order

Clause 170 empowers
a court, on the application of the DPP, to confirm the literary
proceeds order relating to a conviction which has been quashed if
it is satisfied that it could have made a literary proceeds order
in relation to the person on the grounds other than in reliance on
the person’s conviction of the offence.

Clause 171
Effect of court’s decision on confirmation of literary
proceeds order

Clause 171 provides
that if a court confirms the literary proceeds order relating to a
conviction which has been quashed, that order is not affected by
the quashing of the conviction. The order will therefore
continue to apply despite the quashing of the
conviction.

This clause enables
a court which is determining an application for a literary proceeds
order, on the application of the DPP, to include amounts of
literary proceeds which it is satisfied the person is to receive in
the future. The purpose of this provision is to remove the
need for the DPP to keep returning to court with new applications
in relation to on-going payments to which the person the subject of
the order is entitled - for example royalties or progress
payments.

This clause provides
that an order in relation to future literary proceeds can not be
enforced unless and until those proceeds are actually
received.

Chapter 3 - Information
gathering

Part 3-1
Examinations

Division 1 -
Examination orders

Clause 174 Examination orders
relating to restraining orders

This clause provides
that where a restraining order is in force, a court may make an
order for the examination of any person. That includes a
person who owns the property, or who claims an interest in property
that is the subject of the restraining order, and a person named in
a restraining order as a suspect; further, it includes the
spouses of those persons. Those persons and their spouses can
be examined about the “affairs” (for example the
interests, transactions, and ventures) including the nature and
location of any property of any of the persons referred to in
paragraphs 174(1)(a)-(c). The person to be examined may also
include lawyers, accountants, bankers and other advisers of the any
of the persons referred to in paragraphs
174(1)(a)-(c).

Upon the cessation
of the restraining order, the examination order also ceases to have
effect.

This clause applies
where an application has been made to quash a person’s
conviction (refer: clauses 77, 102, 140 and 167). The
court may make an order for the examination of a person, including
the person whose conviction is quashed, and a person whose
property, or interest in the property is the subject of a
forfeiture, pecuniary penalty order or literary proceeds
order. Those persons and their spouses can be examined about
the “affairs” (for example the interests, transactions,
and ventures) including the nature and location of any property of
any of the persons referred to in paragraphs 175(1)(a)-(c).
The person to be examined could also include lawyers, accountants,
bankers and other advisers of any of the persons referred to in
paragraphs 175(1)(a)-(c). The examination order ceases if the
application to quash is withdrawn or when the court makes a
decision on the application.

Clause 176 Applications for
examination orders

This clause provides
that the examination order can be made only on the application of
the DPP.

Division 2 -
Examination notices

Clause 177 Examination
notices

This clause enables the DPP to
apply to an approved examiner for a written examination
notice. The approved examiner is a person who holds an office
or who is included in a class of people specified in the
regulations or who has been appointed by the Attorney-General under
this clause.

It is currently
anticipated that those who may be appointed as approved examiners
would include Members of the Administrative Appeals Tribunal above
a certain rank, Members of the Administrative Appeals Tribunal with
at least five years admission as a legal practitioner, persons who
have held judicial office and have signified their willingness to
be an approved examiner, former Magistrates who have signified
their willingness to be an approved examiner, and persons with
relevant qualifications including at least five years admission as
a practitioner who have signified their willingness to be an
approved examiner.

The approved
examiner can give an examination notice to a person who is the
subject of an examination order. An approved examiner cannot
give an examination notice if an application has been made to
revoke the relevant restraining order and the court orders the
examination not to proceed.

An approved examiner
is not prevented from giving an examination notice by the
institution or commencement of any criminal proceedings.

Clause 178 Additional
examination notices

This clause allows
more than one examination notice to be given to a person who is the
subject of an examination order.

Clause 179 Form and content of
examination notices

This clause sets out
the form and content of examination notices. The notice must
be in the prescribed form, it must require the person to attend the
examination and specify the time and place of the
examination. The notice must also specify any further
information as required by the regulations. The notice may
require the person to produce at the examination any documents
specified in the notice .

Division 3 -
Conducting examinations

Clause 180 Time and place of
examination

This clause requires
the examination to be conducted at the time and place specified in
the examination notice. The approved examiner may move the
examination to another time and place at the request of the parties
to the examination referred to in subclause 182(3). If, after
the examination notice has been given, an application is made for
the restraining order to be revoked and the court orders that the
examinations are not to proceed, the approved examiner must give
written notice withdrawing the examination notice and must stop the
examination if it has started. The approved examiner may give
a person a further examination notice if the application for
revocation of the restraining order is unsuccessful.

An examination is
not prevented by the institution or commencement of any criminal
proceedings.

Clause 181 Requirements made of
person examined

Subclauses 181(1)(2)
and (3) enable the DPP and the approved examiner to examine a
person on oath or affirmation. The approved examiner may
require the person to take the oath or make the affirmation and can
also administer it. The oath or affirmation made by the
person for the purposes of the examination is that the statements
the person will make will be true.

Subclause 181(4)
provides that the examination must not relate to a person’s
affairs if the person is no longer a person whose interests,
transactions, ventures and “affairs” can be the subject
of an examination under either clause 174 or clause
175.

Sub clause 181(5)
allows the approved examiner to require the person to answer a
question put to the person at the examination that is relevant to
the affairs of a person referred to in paragraph 174(1)(a)(b) or
(c) or 175(1)(a)(b) or (c).

As provided in
clause 174, “affairs” includes the nature and location
of any property.

Clause 182 Examination to take
place in private

This clause provides
for the examination to take place in private. The approved
examiner, the person being examined and their lawyer, the DPP and
any person whom the approved examiner has directed may be present
are the only people entitled to be present at the
examination.

Clause 183 Role of the
examinee’s lawyer

This clause enables
the approved examiner to determine when the lawyer of the person
being examined may address the approved examiner and examine the
person about matters on which the person has been examined.
The approved examiner can also stop the person’s lawyer
addressing the approved examiner or stop the examination by the
lawyer if the approved examiner thinks the lawyer is trying to
obstruct the examination.

Clause 184 Examination by video
link and telephone

Subclause (1)
enables the approved examiner if requested by a party referred to
in subclause 182(3) to conduct an examination by video link.
. To do this the facilities required by subclause 184(2) must
be available, the approved examiner must be satisfied that to
require the person to attend the examination would cause
unreasonable expense or inconvenience and it would be in the
interests of justice to have the person examined by video
link.

Subclause 184(2)
requires the place of examination to be equipped with appropriate
facilities.

Subclause 184(3)
enables the administration of an oath or affirmation by video link
by a person authorised by the approved examiner at the place where
the person is to be examined.

Subclause 184(4)
enables the approved examiner to conduct an examination by
telephone on the request of a person referred to in paragraph
182(3) if the approved examiner is satisfied that it is consistent
with the interest of justice.

Clause 185 Record of
examination

This clause relates
to the record of the examination. The approved examiner may
record the statements made at the examination, and must do so if
requested by the person being examined or by the DPP. If the
record is not a written record, and the person being examined or
the DPP so request, the examiner must cause the record to be
reduced to writing.

Where the record is
in writing, the approved examiner may require the person being
examined to read and sign it. However, if the person being
examined signs it because of that requirement, that in itself does
not constitute an acknowledgment that the record is
accurate.

If the person being
examined requests a written copy of the record the approved
examiner must provide a written copy without charge; the
record may be provided subject to conditions which the examiner
considers necessary to prevent improper
disclosure.

Clause 186 Questions of
Law

This clause enables
an approved examiner to refer a question of law arising at the
examination to the court that made the examination order.
That can be done on the initiative of the approved examiner or at
the request of the person being examined or the DPP.

Subclause 187(1)
allows an approved examiner to give directions preventing or
restricting disclosure to the public of matters contained in
answers or documents produced in the course the examination.
That can be done on the initiative of the approved examiner, at the
request of the person being examined or at the request of the
DPP.

In deciding whether
to give a direction, subclause 187(2) requires the approved
examiner to have regard to whether any answer, document or matter
arising during the examination is of a confidential nature or
relates to the commission or possible commission of an
offence. The approved examiner must also consider any likely
unfair prejudice to the person’s reputation that could be
caused, whether it is in the public interest to give the direction
and any other relevant matter.

Clause 188 Protection of
approved examiner etc

Subclause 188(1)
provides an approved examiner in the performance of his or her
duties with the same protection and immunity as a Justice of the
High Court.

Sub clause 188(2)
provides a lawyer appearing at the examination on behalf of the
person being examined or as or on behalf of the DPP with the same
protection and immunity as a barrister appearing for a party before
the High Court.

Subject to this Act
subclause 188(3) provides a person being examined with the same
protection and, in addition to the penalties provided by this Act,
with the same liabilities as a witness in proceedings in the High
Court.

Division 4 -
Offences

Clause 189 Failing to attend an
examination

This clause makes it
an offence for a person required by an examination notice to attend
an examination, to refuse or fail to attend the examination at the
time and place specified in the notice.

Clause 190 Offences relating to
appearance at an examination

Subclause 190(1)
creates a number of offences applicable to a person who is
attending an examination in order to answer questions or produce
documents.

Pursuant to
paragraphs 190(1)(a)-(d) the person cannot refuse or fail to be
sworn or make an affirmation, refuse or fail to answer a question,
refuse or fail to produce a document specified in the examination
notice or, leave the examination before being excused by the
approved examiner.

Subclause 190(2)
provides that paragraph 190(1)(c) does not apply if the person
complied with the notice to the extent that it was practicable to
do so.

Clause 191 Privileged
information

Subclause 191(1)
provides that the offences in paragraphs 190(1)(b) and (c) have no
application if, under a law of the Commonwealth or a law of the
State or Territory in which the examination takes place, the person
could not be compelled in proceedings before a court to answer the
question or produce the document (as appropriate).

However, pursuant to
subclause 191(2), paragraphs 190(1)(b) and (c) apply if the only
reason why the person could not be so compelled is because of self
incrimination, legal professional privilege, or because the answer
or the document would be statutorily inadmissible in legal
proceedings for a reason other than being privileged from
disclosure.

Subclause 191(3)
provides that a contractual obligation not to disclose information
or an obligation under a foreign law not to disclose information
are not reasons why a person cannot be compelled to answer a
question or produce a document.

Clause 192 Admissibility of
answers and documents

This clause states
the rule that an answer given or document produced in an
examination can not be used in civil or criminal proceedings
against the person who gave the answer or produced the document,
and sets out exceptions to that rule.

The answer or the
document can be used in criminal proceedings for giving false
evidence, or in proceedings on an application under this Act, or in
proceedings ancillary to an application under this Act, or in
proceedings for enforcing a confiscation order, or in the case of a
document in civil proceedings in respect of a right or liability it
confers. This last provision is based on paragraph 13(2)(e) of the
NSW Criminal Assets Recovery Act 1990 . It means that a
document produced in a compulsory examination retains its
admissibility in relation to other proceedings about rights or
liabilities which are inherent to the document. For example,
a contract for sale remains enforceable between vendor and
purchaser, even though it has been produced in the
examination. Its production in an examination does not alter
those rights.

The clause does not
confer “derivative-use immunity”. That is, it
does not make inadmissible in civil or criminal proceedings
anything that is obtained directly or indirectly as a result of the
giving of the answer or production of the
document.

Clause 193 Unauthorised
presence at an examination

This clause makes it
an offence for a person to be present at an examination if the
person is not entitled under subclause 182(3) to attend the
examination. The maximum penalty that may be imposed in
relation to this offence is a fine
of
30 penalty units.

Clause 194 Breaching conditions
on which records of statements are provided

This clause makes it
an offence to breach a condition (imposed pursuant to subclause
185(3) that relates to a record given to the person. The
maximum penalty that may be imposed in relation to this offence is
a fine of 30 penalty units.

Clause 195 Breaching directions
preventing or restricting publication

This clause makes it
an offence to publish a matter contained in answers given or
documents produced at an examination in contravention of a
direction given under clause 187. The maximum penalty that
may be imposed in relation to this offence is a fine of 30 penalty
units.

Part 3-2 - Production
Orders

Note : The
provisions relating to the retention of certain documents contained
in Proceeds of Crime Act 1987 Part IV Division 4, Obligation
of Financial Institutions continue to apply.

Clause 196 Making production
orders

Clause 196 outlines
the procedure for the making and granting of applications for
production orders. Subclause 196(1) provides that a
magistrate may make a production order requiring a person to
produce, or make available for inspection, one or more
property-tracking documents to an authorised officer. That
order may only be made on the application of an authorised officer
of an enforcement agency, and the magistrate must be satisfied that
the person is reasonably suspected of having possession or control
of property-tracking documents.

The definition of
property-tracking document is included in subclause 196(4).
It is based on the definition of property-tracking document in
section 4 of the Criminal Assets Recovery Act 1990 (NSW) and
is intended to be wide enough to include property that could be the
subject of a restraining order.

The definition of
property-tracking document includes a document relevant to
identifying, locating or quantifying property of any person who has
been convicted of, charged with, or is proposed to be charged with,
an indictable offence; or who is reasonably suspected of having,
within the last six years, engaged in conduct constituting a
serious offence. Further, the definition includes documents
relevant to identifying or locating any document necessary for the
transfer of property of such a person.

In addition to
referring to documents about the property of a person, the
definition also includes documents relating to the proceeds of an
indictable or serious offence. The definition includes a
document relevant to identifying, locating or quantifying proceeds
of an indictable offence, or an instrument of an indictable
offence, of which a person has been convicted, or with which a
person has been charged or is proposed to be charged.
Further, it also refers to a document relevant to identifying,
locating or quantifying proceeds of a serious offence, or an
instrument of a serious offence, of which a person is reasonably
suspected of having committed within the last six years. In
addition, it also refers to a document relevant to identifying,
locating or quantifying proceeds in relation to an indictable
offence. The definition also includes a document relevant to
identifying or locating any document necessary for the transfer of
any such property.

Finally, a
property-tracking document also includes a document relevant to
identifying, locating or quantifying literary proceeds in relation
to an indictable offence or a foreign indictable offence of which a
person has been convicted or reasonably suspected of having
committed.

Clause 197 Contents of
production orders

Clause 197 sets out
what a production order must specify. Under subclause 197(1),
the order must specify the nature of the documents required, the
place at which the person must produce the documents or make the
documents available and the time at which, or the times between
which this must be done (which must be at least 14 days from the
day that the order is given). The production order must also
set out the effect of the offences in clauses 204 and 205 if
applicable.

Subclause 197(2)
prevents an order being made in respect of bankers’
books.

Clause 198 Powers under
production orders

Under clause 198,
the authorised officer is authorised to inspect, take extracts
from, or make copies of, a document produced or made available
under a production order.

Clause 199 Retaining produced
documents

Clause 199 outlines
how long an authorised officer may retain documents produced under
a production order, and the rights that the person to whom a
production order is given has in relation to those documents.
Under subclause 199(1), the documents may be retained for as long
as is necessary for the purposes of the Act. That is
consistent with the current retention requirement in paragraph
66(9)(d) of the Proceeds of Crime Act 1987 .

The person to whom a
production order is given may require the authorised officer to
give the person a certified copy of the document retained, or
require the authorised officer to allow the person to inspect, take
extracts from or make copies of, the
document.

Clause 200 Privilege against
self-incrimination

Subclause 200(1)
provides that it is not an excuse for failing to produce, or to
make available, a document as required by a production order, on
the ground that the production or making available of the document
would tend to incriminate the person or make him or her liable to a
penalty, or constitute a breach of an obligation not to disclose
the existence or contents of the document, or breach legal
professional privilege.

Subclause 200(2)
provides a derivative use immunity, that is, any document produced
or made available, or any information, document or thing obtained
as a direct or indirect consequence of producing the document or
making it available shall not be admissible in evidence in criminal
proceedings against the natural person except for the offences of
giving false or misleading information or documents under the
Criminal Code .

Clause 201 Varying production
orders

Clause 201 provides
that a person required to produce a document under a production
order may apply to the court to vary the production order so that
it instead requires the person to make the document available for
inspection. If the court is satisfied that the document is
essential to the business activities of the person, it may vary the
order.

Clause 202 Jurisdiction of
magistrates

Clause 202 enables a
magistrate in a State, the Northern Territory , Norfolk Island or
the Australian Capital Territory to issue a production order in
that State or Territory, a non-governing Territory or another State
or Territory where he or she is satisfied that there are special
circumstances that make the issue of the production order
appropriate.

As with search
warrants, there may be a major conspiracy investigation where
production orders need to be simultaneously executed in a number of
jurisdictions. In such circumstances, it would be undesirable
for applications to be made in each jurisdiction, particularly if
officers with the necessary knowledge of the matter are all located
in one jurisdiction. This would also protect the security of
the investigation.

Clause 203 Making false
statements in applications

Clause 203 makes it
an offence to make a false or misleading statement in, or in
connection with, an application for a production order. The
offence is punishable by 12 months’ imprisonment, a fine of
60 penalty units, or both.

Clause 204 Disclosing existence
or nature of production orders

Subclause 204(1)
makes it an offence for a person given a production order to
disclose the existence or nature of the production order where the
order specifies that information about the order must not be
disclosed. It is also an offence under subclause 204(2) to
disclose information to another person if the other person could
infer the existence or nature of the order from that
information. Each of those offences are punishable by a
maximum of 2 years imprisonment or a fine of 120 penalty
units, or both.

Subclause 204(3)
sets out the exceptions to the offence which include where the
disclosure is made to obtain legal advice or legal representation,
where disclosure is made for the purposes of, or in the course of,
legal proceedings, or where disclosure is made to an employee,
agent or other person in particular circumstances. The
defendant bears an evidential onus in relation to those
exceptions.

Clause 205 Failing to comply
with a production order

Subclause 205(1)
provides that it is an offence to fail to comply with a production
order where the order is given to the person and that person has
not been notified of ‘sufficient compliance’ in
relation to the order. Subclause 205(2) provides that a
person is notified of sufficient compliance where that person gives
any authorised officer a statutory declaration stating that the
person does not have possession or control of the document, and the
officer notifies the person that the statutory declaration is
sufficient compliance with the production order. The maximum
penalty is 6 months’ imprisonment or a fine of 30 penalty
units, or both.

Part 3-3 - Notices to financial
institutions

This is a form of
investigative power, and exercised to allow the investigator to
make a decision on whether to seek a warrant or production order,
or for the purpose of proceedings under the Act. One of the
reasons for the Notice is for AFP or NCA investigators to discover
if a person holds an account with the particular institution: that
is, there may be a known suspect, but the location of their funds
is not known. The provisions are based on
Recommendation 76 of the 1999 ALRC Report Confiscation that
counts: A review of the Proceeds of Crime Act 1987 .

Clause 206 Giving notices to
financial institutions

Clause 206 sets out
the procedure that must be followed where a specified officer gives
a notice to a financial institution requiring the production of
information or documents relevant to certain
matters.

Under subclause
206(1), a specified officer may give a written notice to a
financial institution requiring the production of any information
or documents relevant to certain account and transaction
information. The notice must not be issued unless the officer
reasonably believes that giving the notice is required to determine
whether to take action under this Act, or in relation to
proceedings under the Act.

The specified
officers who may issue a notice are the Commissioner or Deputy
Commissioner of the Australian Federal Police, a senior executive
AFP employee authorised in writing by the Commissioner, or a member
of the National Crime Authority (except in the course of a special
investigation). It was the view of the ALRC that, for the
power to be used responsibly, it was appropriate that it be
exercised only at a very senior level.

Clause 207 Contents of notices
to financial institutions

Clause 207 sets out
what a notice must contain. First, it must state that the
officer giving the notice believes that giving the notice is
required to determine whether to take action under this Act, or in
relation to proceedings under the Act. It must also specify
the name of the financial institution, the kind of information or
documents required to be provided, and the form and manner in which
that information or those documents are to be provided.
Further, it must also state that the information or documents must
be provided within 14 days of the notice.

If the notice
specifies that information about the notice must not be disclosed,
it must also set out the effect of the offences in clauses 210
(disclosing existence or nature of a notice) and 211 (failing to
comply with a notice).

Clause 208 Protection from
suits etc. for those complying with notices

Clause 208 provides
that a financial institution or one of its officers, employees or
agents are protected from any action, suit or proceeding in
relation to any action taken by the institution or person in
relation to its or their response to a notice under clause 206, or
in the mistaken belief that action was required under the
notice. The same parties are also protected from prosecution
for money laundering offences in respect of the information
provided in response to a notice under clause 206.

Clause 209
Making false statements in applications

This clause creates
the offence of providing a false or misleading statement in
relation to an application for a notice to a financial
institution. The offence applies whether the statement is
given orally or in a document or other form. The maximum
penalty which can be imposed in relation to this offence is 12
months imprisonment, a fine of 60 penalty units, or
both.

Clause 210 Disclosing existence
or nature of notice

Clause 210 makes it
an offence for a person given a notice under clause 206 to disclose
the existence or nature of the notice where the notice specifies
that information about the notice must not be disclosed. The
maximum penalty which can be imposed in relation to this offence is
2 years’ imprisonment, a fine of 120 penalty units, or
both.

Clause 211 Failing to comply
with a notice

Clause 211(1)
provides that it is an offence for a person to fail to comply with
a notice given under clause 206. The maximum penalty which
can be imposed in relation to this offence is 6 months’
imprisonment, a fine of 30 penalty units, or both.

Part 3-4 - Monitoring
orders

Note : The provisions
relating to the retention of certain documents contained in
Proceeds of Crime Act 1987 Part IV Division 4, Obligation of
Financial Institutions continue to apply.

Clause 212 Making monitoring
orders

Clause 212 sets out
the procedure for the making of a monitoring order. Under
subclause 212(1), a Judge of a court with jurisdiction to deal with
criminal matters on indictment may make a monitoring order that a
financial institution provide information about transactions
conducted during a particular period through an account held by a
particular person with the institution.

Under subclause
212(2), the Judge must not make the order unless satisfied that
there are reasonable grounds for suspecting that the person has
committed, or is about to commit, a serious offence; was
involved in the commission, or is about to be involved in the
commission, of a serious offence; or has benefited directly
or indirectly, or is about to benefit directly or indirectly, from
the commission of a serious offence.

Subclause 212(3)
provides that the order may be made only on application by an
authorised officer of an enforcement
agency.

Clause 213
Contents of monitoring orders

Clause 213 states
what a monitoring order must contain. It must specify the
name or names of the account holder; the kind of information that
the financial institution is required to provide; the time frame
during which the transactions must have occurred (beginning no
earlier than the day on which notice of the order is given to the
financial institution and ending no later than three months after
the date of the order); the authorised officer and enforcement
agency to whom the information is to be provided; if applicable,
the consequences of unlawful disclosure (that is, offence
provisions); and the form and manner in which the information is to
be given.

Clause 214 Protection from
suits etc. for those complying with orders

Clause 214 provides
that a financial institution or its officers, employees or agents
are protected from any action, suit or proceeding in relation to
any action taken by the institution or person in relation to its or
their response to a monitoring order. The same parties are
also protected from prosecution for money laundering offences in
respect of the information provided in response to a monitoring
order.

Clause 215 Making false
statements in applications

This clause creates
the offence of providing a false or misleading statement in
relation to an application for a monitoring order. The
maximum penalty which can be imposed in relation to this offence is
2 years’ imprisonment, a fine of 120 penalty units, or
both.

Clause 216 Disclosing the
existence or operation of monitoring order

This clause creates
offences of disclosing the existence and operation of a monitoring
order.

Subclauses 216(1)
creates an offence for a person to disclose the existence or
operation of a monitoring order. It is also an offence
to disclose information to another person if the other person could
infer the existence or operation of the monitoring order from that
information : subclause 216(2)

Subclause 216(3)
makes it an offence for a person to make a record of, or disclose,
the existence or the operation of a monitoring order if that person
receives information relating to that order but that person is not
authorised to receive the information.

Each offence is
punishable by a maximum of 5 years’ imprisonment or 300
penalty units, or both.

Subclause 216(4)
sets out the circumstances in which it is permitted to disclose the
existence or the operation of a monitoring order. The
information may be disclosed to the head of the enforcement agency
or a senior officer of that agency for the performance of that
person’s duties, or for purposes connected to legal or court
proceedings; or to an officer or agent of the financial
institution for the purpose of ensuring that the order is complied
with; or a barrister or solicitor for the purpose of
obtaining legal advice or representation in relation to the
order.

Clause 217 Failing to comply
with monitoring order

Clause 217 provides
that it is an offence for a person to fail to comply with a
monitoring order. The maximum penalty which can be imposed in
relation to this offence is 6 months’ imprisonment, a fine
of 30 penalty units, or both.

Part 3-5
- Search and seizure

Division 1
- Search warrants

Subdivision A
- Issuing search warrants

Note : The provisions
relating to the retention of certain documents contained in
Proceeds of Crime Act 1987 Part IV Division 4, Obligation of
Financial Institutions continue to apply.

Clause 218
Issuing a search warrant

Subclause 218(1)
enables a magistrate to issue a search warrant if satisfied by
information on oath that there are reasonable grounds for
suspecting that there is, or will be within the next 72 hours,
evidential material at the premises. The 72 hour limit
permits a warrant to be obtained in advance where intelligence
suggests that evidential material is to be taken to specified
premises.

Subclause 218(2)
provides that that if the application for a warrant is made by
telephone or other electronic means, as set out in clause 223, the
period in which there are reasonable grounds to suspect that the
evidential material will be at the premises is reduced from 72 to
48 hours.

Subclause 218(3)
provides that a search warrant may be issued only on application by
an authorised officer of an enforcement agency.

Clause 219
Documents identifying etc. evidential material etc.

This clause applies
if the evidence in respect of which a search warrant is being
issued is a property tracking document.

Clause 219 prevents
a magistrate from issuing a search warrant in respect of a property
tracking document unless the documents concerned are not capable of
being identified or described with sufficient particularity for the
purpose of obtaining a production order; or that a production order
has not been complied with or there are reasonable grounds to
suspect that a production order would not be complied with; or that
the investigation is likely to be seriously prejudiced by seeking a
production order if an authorised officer does not gain immediate
access to the document without notice to any person.

Clause 220
Additional contents of the information

Subclause 220(1)
provides that if the person applying for the warrant suspects that
it will be necessary to use firearms, the grounds for the suspicion
must be stated in the information. This subclause is intended
to alert the issuing officer to the possibility of violence.
This is considered particularly desirable where it is proposed that
tactical response units, special weapons squads and the like may be
used.

Subclause 220(2)
requires a person re-applying for a fresh warrant to search
premises that were the subject of a previous search warrant to
include particulars of the application and its outcome in the
information.

Clause 221 Contents of
warrants

Subclause 221(1)
sets out the matters which must be specified in a warrant.
These matters include: the property in respect of which
action has been or could be taken under this Act, and the nature of
that action; a description of the premises; the kind of evidential
material that is to be searched for; the name of the authorised
officer; the time at which the warrant expires; whether the warrant
may be executed at any time or only during particular hours; that
the warrant authorises, in particular circumstances, the seizure of
other things found at the premises; and that the warrant
authorises, in particular circumstances, an ordinary or frisk
search.

Subclause 219(2)
provides that the search warrant must state that it expires at a
time that is not later than the end of the seventh day after the
day on which it is issued, or, in the case of warrant issued by
telephone, fax or by other electronic means, no later than 48 hours
after the warrant is issued.

Subclause 219(3)
ensures that the time limit on the duration of a warrant does not
prevent the issue of further warrants for the same
premises.

Clause 222 The things that are
authorised by a search warrant

Subclause 222(1) is
based on subsection 3F(1) of the Crimes Act 1914 and sets
out the matters that are authorised by a search warrant. A
warrant authorises entry and search. It authorises seizure of
evidential material of the kind specified in the warrant, and of
other kinds of evidential material found at the premises in the
course of the search that is necessary to preserve. The
warrant also authorises the searching for, and recording of,
fingerprints and other forensic samples found at the
premises. If a warrant expressly authorises the frisk or
ordinary search of a person at, or near, the premises - the
executing officer or person assisting is empowered to search such a
person suspected of having evidential material in his or her
possession.

Subclause 222(2) is
based on subsection 3F(5) of the Crimes Act 1914 and
provides that a search warrant authorises an executing officer to
make things seized under the warrant available to other enforcement
agencies where it is necessary for the purposes of the
investigation or prosecution of an offence to which the things
relate. The purpose of this subclause is to permit the seized
items to be exchanged where those items are relevant to an offence
appropriately dealt with by another agency (for example, Australian
Customs Service).

Subdivision B
- Applying for search warrants by telephone or other
electronic means

Clause 223
Applying for search warrants by telephone or other electronic
means

Subclause 223(1)
enables an authorised officer to apply for the issue of a warrant
by telephone, fax or other electronic means in an urgent case or
where the delay caused by applying in person could frustrate the
execution of the warrant. Urgency can arise because of
circumstances requiring immediate action or where the remoteness of
the location of the search involves unacceptable
delay.

Subclause 223(2)
provides that an application under subclause 223(1) must include
all the information that would be required in an ordinary
application and, if necessary, the application may be made before
the information is sworn.

Subclause 223(3)
enables the magistrate to require communication by voice to the
extent that it is practicable in the circumstances and any further
information.

Clause 224
Issuing warrants by telephone etc.

Subclause 224(1)
enables a magistrate to complete and sign the same form of search
warrant that could be issued under clause 218 if satisfied that the
warrant should be issued urgently, or that the delay which would
occur if an application were made in person would frustrate the
effective execution of the warrant.

The magistrate is
required to inform the applicant of the terms of the warrant and
the day and time at which it was signed by the appropriate
electronic means. The applicant must complete a form setting
out the substance of those terms and include information on the
name of the magistrate and the relevant date and time communicated
by the magistrate.

The applicant must,
by the end of the day after the warrant expires, or by the end of
the day after the warrant is executed, whichever event is earlier,
give the magistrate the completed form of warrant and, if the
information had not been sworn, the sworn information. Those
documents must be attached by the magistrate to the form of search
warrant completed by the magistrate.

This provision is
particularly necessary in remote areas or where for some reason a
magistrate is not readily available.

Clause 225 Unsigned telephone
warrants in court proceedings

Clause 225 provides
that where the form of warrant signed by the magistrate is not
produced in evidence in proceedings where it is material for a
court to be satisfied that the exercise of a power under a search
warrant issued under Subdivision B was duly authorised, the court
must assume that the exercise of a power under a search warrant was
not duly authorised unless the contrary is proved.

Clause 226 Offence for stating
incorrect names in telephone warrants

Clause 226 provides
that it is an offence for a person to state a name of a magistrate
in a form of search warrant issued by telephone, fax or by other
electronic means where the name is not the name of the magistrate
that issued the warrant. This provision is based on
subsection 3ZU(a) of the Crimes Act 1914 and is intended to
prevent abuses of telephone search warrants by law enforcement
officers.

Clause 227 Offence for
unauthorised form of warrant

Clause 227 provides
that it is an offence for a person to state a matter in a form of
search warrant issued by telephone, fax or by other electronic
means where the matter departs in a material particular from the
form authorised by the magistrate. This provision is based on
subsection 3ZU(b) of the Crimes Act 1914 and, as in the case
of clause 226, is intended to prevent abuses of telephone search
warrants by law enforcement officers.

Clause 228 Offence for
execution etc. of unauthorised form of warrant

Clause 228 provides
that it is an offence for a person to execute or present a form of
search warrant issued by telephone, fax or by other electronic
means that has not been approved by the magistrate, or departs in a
material particular from the terms authorised by the
magistrate. This provision is based on subsection 3ZU(c) of
the Crimes Act 1914 and, as in the case of clauses 226 and
227, is intended to prevent abuses of telephone search warrants by
law enforcement officers.

Clause 229 Offence for giving
unexecuted form of warrant

Clause 229 provides
that it is an offence for a person to give to a magistrate a form
of search warrant issued by telephone, fax or by other electronic
means that is not the form of search warrant that the person
executed. This provision is based on subsection 3ZU(d) of the
Crimes Act 1914 and, as in the case of clauses 226, 227 and
228, is intended to prevent abuses of telephone search warrants by
law enforcement officers.

Subdivision C
- Executing search warrants

Clause 230
Warrants that must be executed only during particular
hours

Clause 230 obliges
those executing a search warrant to comply with limitations
particularised in the warrant relating to hours during which it may
be executed. It is based on subsection 3F(3) of the Crimes
Act 1914 .

Clause 231 Restrictions on
personal searches

Subclause 231(1)
provides that a search warrant can not authorise a strip search or
a search of person’s body cavities. Strip searches in a
post arrest situation are dealt with by provisions in Part 1AA of
the Crimes Act 1914 while provisions authorising the taking
of forensic procedures from suspects is dealt with in Part 1D of
the Crimes Act 1914 . Body cavity searches in relation
to narcotic offences are dealt with in the Customs Act
1901 .

Subclause 231(2)
provides that a search warrant that authorises an ordinary search
or a frisk search must, if practicable, be conducted by a person of
the same sex as the person being searched. It also prohibits
a different search being conducted from the one authorised by the
warrant.

Subclause 231(3)
provides that a person assisting in the execution of the warrant
but who is not an authorised officer, must not take part in
searching a person.

Clause 232 Availability of
assistance and use of force in executing a warrant

Clause 232 outlines
the assistance that may be obtained and force that may be used in
executing a warrant. First, an executing officer (and/or
authorised officer assisting in executing the warrant) may obtain
such assistance and use such force against persons and things as is
necessary and reasonable in the circumstances. The provision
is based on section 3H of the Crimes Act 1914 which restates
the common law position.

However, where the
person assisting in the execution of the warrant is not an
authorised person, that person is only authorised to use force in
relation to things (for example, a locksmith assisting law
enforcement officers to open a safe) and not
persons.

Clause 233
Announcement before entry

Subclause 233(1)
requires an executing officer who is about to enter premises under
a search warrant to announce that he or she is about to enter, and
provide the occupier or other person at the premises, the
opportunity of allowing the officer inside. Where the
occupier of the premises is there, or a person who represents the
occupier is present, the officer must identify him or herself to
that person.

However, subclause
233(2) authorises the officer not to comply with those requirements
if the officer believes on reasonable grounds that to do so would
compromise the safety of a person, including the officer, or would
frustrate the effective execution of the warrant.

Clause 234
Details of warrant to be given to occupier etc.

Subclause 234(1)
provides that, if a warrant in relation to premises is being
executed, a copy of the warrant and a document setting out the
rights of the person must be made available to the occupier of the
premises (or another person who apparently represents the occupier)
if the occupier or that other person is present at the
premises. This provision is consistent with a recommendation
of the Senate Standing Committee for the Scrutiny of Bills (para
1.68 of Report 4/2000). In addition, subclause 234(2)
provides that a copy of the warrant must also be made available to
the person being searched under the warrant.

The copy of the
warrant need not include the signature of the magistrate or the
seal of the court. That is to ensure that forgery or wrongful
use of the warrant copy is prevented. It is based on
subsection 3H(5) of the Crimes Act 1914 , which was included
at the specific request of the then ACT Chief
Magistrate.

Clause 235 Occupier entitled to
be present during search

Subclause 235(1)
provides that an occupier who is present at the premises is
entitled to observe at the premises during the execution of a
search warrant. However, the right ceases if that person
impedes the search, or if that person is under arrest and allowing
the person to observe the search would interfere with the
objectives of the search. The clause does not prevent two or
more areas of the premises being searched at the same
time.

This clause is based
on section 3P of the Crimes Act 1914 and is a safeguard
which ensures that the occupier has the right to observe whether
the search warrant is being executed according to its
terms.

Clause 236 Specific powers
available to officers executing the warrant

Clause 236 is based
on section 3J of the Crimes Act 1914 and sets outs the
specific powers available to officers executing search
warrants.

Subclause 236(1)
permits the taking of photographs (including video recordings) of
the premises or of things at the premises in certain
circumstances.

Subclause 236(2)
allows for a limited interruption in the execution of a
warrant. The executing officer and persons assisting may, if
the warrant is still in force, complete its execution after ceasing
and leaving the premises for not longer than one hour, or longer if
the occupier consents in writing.

Subclause 236(3)
provides that where the execution of a warrant is stopped by order
of a court which is later revoked or reversed on appeal its
execution may be completed provided the warrant is still in
force.

Clause 237 Use of equipment to
examine or process things

Clause 237 is based
on section 3K of the Crimes Act 1914 and empowers the
executing officer or person assisting to bring to the warrant
premises any equipment reasonably necessary for the examination or
processing of things found at the premises to determine whether
they may be seized.

The clause also
allows the executing officer or person assisting to operate
equipment already at the warrant premises to carry out the
examination or processing if the officer or person believes on
reasonable grounds that the equipment is suitable for this purpose
or the examination or processing can be performed without damaging
the equipment or thing. This is especially useful for
scanning audio or video recordings.

Clause 238 Moving things to
another place for examination or processing

Clause 238 enables a
thing found at premises during the course of a search to be moved
to another place for examination or processing in order to
determine whether it may be seized. That may occur provided
the occupier consents, or, if the occupier does not consent,
provided that two other conditions are satisfied. First,
there must be reasonable grounds to believe that the thing contains
or constitutes evidential material. And, secondly, it is
significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another
place and the availability of expert assistance.

This power may be
useful where, for example, a substance believed to be narcotics is
discovered and it is necessary to take it to a laboratory for
analysis. In many cases, it would not be practicable to
analyse it at most premises.

There are safeguards
ensuring that the occupier’s rights in relation to the seized
thing are protected. Subclause 238(2) provides that the thing
may be moved to another place for examination or processing for no
longer than 72 hours. If an executing officer wishes to get
an extension of that time limit, that officer must apply to a
magistrate for an extension if the officer believes on reasonable
grounds that the thing cannot be examined or processed within 72
hours. Notice of the application must be given to the
occupier and the occupier has an entitlement to be heard in
relation to that application. Finally, the executing officer,
if it is practicable to do so, must inform the occupier of the
address of the place to which the seized thing has been taken; the
time at which the examination or processing will be carried out;
and allow the occupier or the occupier’s representative to be
present during the examination or processing.

Clause 239 Use of electronic
equipment at premises

Subclause 239(1)
provides that the executing officer or the person assisting may
operate electronic equipment at the premises to access data
(whether at the premises or elsewhere) if he or she believes on
reasonable grounds that the data might constitute evidential
material and the equipment can be operated without damaging
it.

Subclause 239(2)
provides that, if the data accessed by the electronic equipment
might constitute evidential material, it may be copied to a disk,
tape or other [similar associated] device brought to the premises
(or at the premises, provided the occupier
consents).

If it is found that
evidential material is accessible using the equipment, the
executing officer or person assisting may seize the equipment and
any disk, tape or similar device. Or, if the material can, by
using facilities at the premises, be put in documentary form, the
executing officer or person may operate the facilities to put the
material in that form and seize the documents so produced.
That would cover the situation where it may be possible to print
out information from a computer terminal.

Finally, subclause
239(4) provides that an authorised officer may seize equipment
under subclause 239(3) only if it not practicable to copy the data
or material into documentary form, or if possession of the
equipment by the occupier could constitute an
offence.

Clause 240
Person with knowledge of a computer or a computer system to assist
access etc.

Clause 240 would
enable a law enforcement officer executing a search warrant to
apply to a magistrate for an ‘assistance’ order in
relation to data held in or accessible from a computer. To
grant the order, the magistrate would have to be satisfied that (i)
there are reasonable grounds for suspecting that evidential
material is accessible from the computer; (ii) the specified person
falls within a certain category of persons (for example, the owner
or lessee of the computer); and (iii) the specified person has
certain knowledge concerning the computer.

Although there is no
requirement to provide such assistance under the Crimes Act
1914 search warrant provisions, assistance requirements are
common in Commonwealth regulatory legislation.

Clause 241 Securing electronic
equipment

Subclause 241(1)
provides that the executing officer or a person assisting may
secure the equipment by locking it up or guarding it if he or she
believes on reasonable grounds that the evidential material may be
accessible by operating the equipment at the premises; that expert
assistance is needed to operate the equipment; and the evidential
material may be destroyed, altered or otherwise interfered with if
the equipment is not secured. This is necessary to ensure
that where the equipment is more sophisticated than expected and
cannot be accessed or moved, then the opportunity to obtain expert
assistance and to preserve evidential material is not lost.
Material accessible on a computer may be lost with a swift
keystroke from an operator. It is not possible to pre-program
the equipment to erase the evidence in this way.

Subclause 241(2)
requires the giving of notice to the occupier in cases where
equipment may be secured for a period of up to 24 hours.
Subclause 241(3) allows the equipment to be secured for either 24
hours or such lesser period when expert assistance is obtained to
operate the equipment.

If the executing
officer or person assisting believes on reasonable grounds that the
expert assistance will not be available within 24 hours, he or she
may apply to a magistrate to extend the period. Before
applying for the extension, the executing officer or person
assisting must notify the occupier of the premises of his or her
intention to apply for an extension. The occupier is entitled
to be heard in relation to the application.

Subclause 241(6)
provides that the provisions of this Division relating to the issue
of search warrants apply with necessary modifications to the
issuing of extensions.

Clause 242 Compensation for
damage to electronic equipment

Clause 242 provides
that, if damage is caused to equipment as a result of it being
operated as mentioned in clauses 237 and 239 or the data recorded
on the equipment is damaged or corrupted, and the damage resulted
from insufficient care being exercised either in selecting the
person to operate the equipment or by the person operating it,
compensation is payable to the owner.

Reasonable
compensation, as agreed between the Commonwealth and the owner or
user, is payable by the Commonwealth out of money appropriated by
the Parliament. In determining the amount of damages payable
regard is to be had to whether the occupier had provided any
warning or guidance on the operation of the equipment. This
is to minimise compensation in cases where there has been a
deliberate programming of software to destroy or cause damage if
not accessed in a particular manner or where the occupier failed to
mitigate damage by providing warning or guidance.

If there is
disagreement between parties as to the amount of compensation, the
owner or user may institute proceedings in the Federal Court for
compensation.

Clause 243 Copies of seized
things to be provided

This clause is based
on section 3N of the Crimes Act 1914 and requires an
authorised officer to give to the occupier, on request, a copy of a
thing or information seized that can be readily copied. This
does not apply in certain circumstances where the thing or
information was seized by use of electronic equipment at the
premises, or if possession by the occupier of the document, film,
computer file, thing or information could constitute an
offence.

Clause 244 Providing documents
after execution of a search warrant

This provision is based on
Recommendation 75 of the ALRC
Report Confiscation that counts: A review of the Proceeds of
Crime Act 1987 , in response to submissions
made to the Commission about problems arising with time constraints
on the execution of search warrants on financial
institutions. It was said that it would be helpful if search
warrants could be executed but remain in force for a specified
period of time, giving financial institutions sufficient time to
gather documents, search indices and collate documents for delivery
to investigators. It was also said that further warrants are
required where documents are located at different times by
financial institutions after the original warrant has been executed
and is therefore ‘spent’. Seeking further warrants in
these circumstances is very time consuming for both investigators
and issuing officers. The provision is intended to be
facilitative, and assist in overcoming those
difficulties.

The clause provides
that documents that were on, or accessible from, the premises of a
financial institution at the time when a search warrant was
executed, but were unable to be located at that time, and the
occupier of the premises provides them as soon as practicable after
the execution of the warrant, then those documents are taken to
have been seized under the warrant.

Division 2 - Stopping
and searching conveyances

Clause 245
Searches without warrant in emergency situations

Clause 245 applies
where an authorised officer suspects on reasonable grounds that a
thing constituting evidential material is in or on a conveyance
(aircraft, vessel or vehicle). The authorised officer must
also suspect that it is necessary to seize the thing to prevent
concealment, loss or destruction and that it is necessary to act
without the authority of a search warrant because the circumstances
are serious and urgent. Under such circumstances, a constable
may stop, detain and search the conveyance, and seize the
thing.

If, in the course of
searching for the thing, the officer finds another thing
constituting evidential material, the officer may seize it to
prevent its concealment, loss or destruction because the
circumstances are serious and urgent.

Subclause 245(4)
provides that the officer must exercise the powers subject to
clause 246 which provides various safeguards.

Clause 246 How an authorised
officer exercises a power under section 245

Clause 244 sets out
how an authorised officer exercises a power under clause 245.
When an authorised officer exercises powers under clause 245, he or
she may use such assistance as is necessary; must search the
conveyance in a public place or place to which the public have
ready access, and must not detain the conveyance for longer than is
necessary and reasonable to search it and any container found in or
on the conveyance.

While the authorised
officer may use necessary and reasonable force to open a part of
the conveyance or any container, he or she must not cause damage
unless the person in charge of the conveyance is absent and
therefore cannot be given an opportunity to open the
container. In those circumstances, the constable may open
it.

Division 3 -
General

Clause 247
Application of Part

Clause 247 provides
that nothing in Part 3-5 is intended to limit or exclude another
law of the Commonwealth, a State or of a Territory relating to the
search of persons or premises; the stopping, detaining or searching
of conveyances; or the seizure of things. This ensures that,
despite references in Part 3-5 to the search of persons or premises
etc, officers investigating offences under the Act will still be
able to avail themselves of any relevant laws (for example, similar
provisions in Part 1AA of the Crimes Act
1914 ).

Clause 248 Receipts for things
seized under warrant

Clause 248 requires
an executing officer or person assisting to provide a receipt
(which may cover two or more things) for a thing seized under a
warrant; a thing moved to another place for examination or
processing; or a thing seized during a search without warrant in an
emergency situation.

Clause 249 Retaining seized
things

Subclause 249
provides that, subject to certain exceptions, where things are
seized under Part 3-5 they must be returned if the reason for their
seizure ceases to exist or it is decided that the seized items are
not to be used in evidence. Additionally, if an authorised
officer seizes a thing in an emergency situation under clause 245,
the authorised officer must return it when the period of 60 days
after the thing’s seizure ends. This reflects the fact
that seizure in these circumstances is not judicially sanctioned
and is based on section 3ZV of the Crimes Act
1914 .

The exceptions to
the above situations are where the thing is forfeitable to the
Commonwealth (for example, drugs), there is a dispute as to the
ownership of the thing or where the authorised officer is otherwise
authorised by law or a court or tribunal to retain, destroy or
dispose of the thing.

Clause 250
Authorised officer may apply for a thing to be retained for a
further period

Clause 250 allows a
magistrate to order that a seized thing be retained for a period
longer than 60 days, or a period previously specified in an order
of a magistrate under this clause, where proceedings in respect of
which the thing might afford evidence have not commenced. The
authorised officer who proposes to make the application for the
time extension must take reasonable steps to discover each person
who may be affected by the retention of the thing and, if it is
practicable to do so, notify those persons.

Clause 251 Magistrate may order
that the thing be retained

Clause 251 provides
that the magistrate may order that the authorised officer retain
the thing for a specified period if the magistrate is satisfied
that retention is necessary for the purpose of initiating or
conducting proceedings under this Act.

Clause 252 Law relating to
legal professional privilege not affected

This clause put
beyond doubt that this Part does not in any way affect the law
relating to legal professional privilege. Under that law,
documents which are subject to legal professional privilege cannot
be seized.

Clause 253 Jurisdiction of
magistrates

Clause 253 provides
that an magistrate in a State, the Northern Territory, Norfolk
Island or the Australian Capital Territory may issue a search
warrant in that State or Territory; another State or Territory if
he or she is satisfied that there are special circumstances that
make the issue of the production order appropriate; or a
non-governing Territory.

This provision may
also assist where there may be a major conspiracy investigation and
search warrants need to be simultaneously executed in a number of
jurisdictions. In such circumstances, it would be undesirable
for applications to be made in each jurisdiction, particularly if
officers with the necessary knowledge of the matter are located in
one jurisdiction. This would also protect the security of the
investigation.

Clause 254 Offence for making
false statements in applications

Clause 254 which
makes it an offence to make a false or misleading statement in, or
in connection with, an application for a search
warrant.

Chapter 4 -
Administration

Part 4-1
- Powers and duties of the Official Trustee

Division 1
- Preliminary

Clause 255 Property to which the
Official Trustee’s powers and duties under this Part
apply

Clause 255 provides
that the OT may the exercise the powers, and shall perform the
duties, that are conferred or imposed under this Part in relation
to property of which a court has ordered the OT to take control and
custody under clause 36. Such property is called
“controlled property”. This clause further
provides that the OT may exercise the powers, and shall perform the
duties, that are conferred or imposed under Division 4 in relation
to any property that is the subject of a restraining order, whether
or not the property is controlled property.

Division 2 - Obtaining information
about controlled property

Clause 256 Access to
books

Clause 256 provides
that the OT, or another person authorised in writing by the OT to
exercise powers under this clause, may require the production of
books in accordance with this clause.

Subclause 256(1)
provides that such a requirement may be made of the suspect in
relation to the restraining order covering the controlled property
or any other person entitled to, or claiming an interest in, the
controlled property. The requirement may be made to ensure
that all the controlled property is under the OT’s custody
and control or to ensure the effective exercise of the OT’s
powers or performance of the OT’s duties under this Part in
relation to controlled property.

Subclauses 256(2),
(3) and (4) set out the manner and parameters of requirements made
under this clause.

Subclause 256(5)
provides that if books are produced in accordance with a
requirement made under this clause, the person making the
requirement to produce books under this clause, or the person
specified in subclause 256(3), may make copies of the books or take
extracts from the books, and may further require the person who is
required to produce the books, or any other person who was a party
to the compilation of the books, to explain to the best of his or
her knowledge and belief any matter relating to the compilation of
the books or to which the books relate.

Subclause 256(6)
provides that if books are not produced in accordance with a
requirement made under this clause, the person making the
requirement to produce books under this clause, or the person
specified in subclause 256(3), may further require the person who
is required to produce the books under this clause to state, to the
best of his or her knowledge and belief, where the books may be
found and who last had possession, custody or control of the books
and where that person may be found.

Subclause 256(7)
provides that the production of books under this clause does not
prejudice a lien held in relation to the books.

Clause 257 Suspect to assist
Official Trustee

Clause 257 provides
that where a restraining order covers controlled property, the
suspect must assist the OT as specified in paragraphs 257(a) to
(d). The assistance must be rendered unless the suspect is
excused by the OT or is prevented from providing assistance
by reason of illness or other sufficient cause.

Clause 258 Power to obtain
information and evidence

Clause 258 grants
the OT power to obtain information and evidence. Subclause
258(1) provides that the OT may exercise this power by giving
written notice that requires a person to give such information as
described in paragraph 258(1)(a) or to attend before the OT or
other authorised person to give evidence or produce books as stated
in paragraph 258(1)(b). Subclause 258(2) provides that the OT
or authorised person may require the information or evidence to be
given on oath, either orally or in writing, and may administer an
oath for that purpose.

Clause 259 Privilege against
self-incrimination

Subclause 259(1)
provides that a person is not excused from giving information or a
document under this Part on the ground that doing so would tend to
incriminate the person or expose the person to a
penalty.

However subclause 259(2) provides
that in relation to a natural person any information or document
given, or any information, document or thing obtained as a direct
or indirect result of giving the information or document, is not
admissible in evidence in criminal proceedings against the person
except proceedings relating to giving false or misleading
information and documents.

Clause 260 Offences relating to
exercise of powers under clause 256 or 257

This clause creates
two offences in relation to failing to comply with a requirement
imposed under clauses 256 and 257, relating to the OT’s
powers to require the production of books and to require specified
forms of assistance.

Clause 261 Failure to provide
information

This clause creates
an offence of failing to comply with a requirement under paragraph
258(1)(a) to give such information as the OT requires for the
purpose of exercising powers or the performance of the OT’s
duties under this Part.

Clause 262 Failure of person to
attend

This clause creates
an offence of failing to attend and produce books, or appear and
report, as required by paragraph 258(1)(b).

Clause 263 Refusal to be sworn
or give evidence etc

This clause creates
offences of failing, as required by a notice given under paragraph
258(1)(b) to be sworn or make an affirmation, or answer a question
that the person is required by the OT or authorised person to
answer, or produce any books that the person is required by the
notice to produce.

This offence
provisions would also cover a person who prevaricates or evades in
the course of giving evidence as required by a notice given to the
person under clause 258(1).

Division 3
- Dealings relating to controlled property

Clause 264 Preserving
controlled property

Clause 264 provides
that the OT may do anything that is reasonably necessary for the
purpose of preserving controlled property; the clause also
specifies a number of things that the OT may do.

Specifically, the OT
may become a party to any civil proceedings affecting the property,
and may take out insurance for the property. If any of the
property consists of securities or investments, the OT may realise
that property. If any of the property is a business, the
person may do anything necessary (or convenient) to carry on the
business in a sound commercial basis; the OT may also employ or
terminate the employment of any employees of the
business.

Clause 265 Rights attaching to
shares

Clause 265 provides
that the OT may exercise the rights attaching to any controlled
property that is shares as if the OT were the registered holder of
the shares. The OT may exercise such rights to the exclusion
of the registered shareholder.

Clause 266 Destroying or disposing
of property

This clause grants
the OT power to destroy or dispose of controlled property.
Subclause 266(1) states that the OT may destroy controlled property
if it is in the public interest to do so or if it is required for
the health or safety of the public.

Subclause 266(2)
grants the OT power to dispose of controlled property, by any
means, if the circumstances described in any of paragraphs
266(2)(a) to (c) exist. Paragraphs 266(2)(a) to (c) concern
agreement between all entitled parties to the disposal, the
likelihood of the property losing value in the OT’s opinion,
and the OT’s opinion that the cost of controlling the
property until final resolution will exceed, or represent a
significant proportion of, the value of the property when it is
finally dealt with.

Clause 267 Notice of proposed
destruction or disposal

Clause 267 provides
that the OT must give written notice of the proposed destruction or
disposal of the controlled property to the owner of the property
and to any other person whom the OT has reason to believe may be
entitled to the property. A person who receives such written
notice may object in writing within 14 days of receiving the
notice.

Clause 268 sets out
the procedure that must be followed if the OT intends to proceed
with the destruction or disposal of controlled property where a
person has objected to the proposed destruction or
disposal.

Subclause 268(1)
states that the OT must apply to the court that granted the
restraining order concerning the property for an order that the OT
may destroy or dispose of the property. Subclause 268(2)
provides that a court may make such an order if it is in the public
interest to do so or it is required for the health of safety of the
public. In determining whether such an order should be made,
the court may take into account any matters it sees fit, including
the matters set out in paragraphs 268(3)(a) to (d).

Subclause 268(4)
provides that the court may make an order for destruction or
disposal of the controlled property if, in the court’s
opinion, the property is likely to lose value or the cost of
controlling the property until it is finally dealt with by the OT
is likely to exceed, or represent a significant proportion of, the
value of the property when it is finally dealt with.

Subclause 268(5)
states that the court may also order that a specified person bear
the costs of controlling the property until it is finally dealt
with by the OT or order that a specified person bear the costs of
an objection to a proposed destruction or disposal of the
property.

Clause 269 Proceeds from sale
of property

Clause 269 provides
that any proceeds realised from the sale of controlled property
under clause 266 are taken to be covered by the restraining order
that covered that controlled property. It further provides
that if the restraining order covered the controlled property on
the basis that the property was proceeds of, or an instrument of,
an offence to which the order relates, the proceeds realised from
the sale of the property continue to be proceeds of, or an
instrument to, that offence.

Clause 270 Direction by a court
to the Official Trustee

Clause 270 provides
that a court may, if subclause 270(2), (3) or (4) applies, direct
the OT to pay the Commonwealth an amount equal to the penalty
amount under a pecuniary penalty order or literary proceeds order
out of property that is subject to a restraining order.

Subclause 270(2)
provides that a court may make such a direction if the order is
made against a person in relation to one or more offences and the
restraining order has already been made against that person in
relation to that offence or offences or in relation to one or more
related offences.

Subclause 270(3)
permits the court to make an order under subclause 270(1) if the
pecuniary penalty order or literary proceeds order has been made
against a person in relation to one or more offences, and a
restraining order is subsequently made against the person in
relation to one or more of those offences or against property of
another person in relation to which an order is in force under
subclause 135(1) in relation to the pecuniary penalty order or
subclause 162(1) in relation to a literary proceeds order.
Subclauses 135(1) and 162(1) provides that property which a court
finds is subject to a person’s effective control may be
declared by the court to be available to satisfy, respectively, a
PPO or LPO made against that person.

Subclause 270(4) provides that the court that made
the pecuniary penalty order or the restraining order may, on
application by the DPP, make a direction under subclause 270(1) if
the pecuniary penalty order or literary proceeds order has been
made against a person in relation to one or more offences, and a
restraining order has been made against the person in relation to
one or more of those offences or against property of another person
in relation to which an order is in force under subclauses 135(1)
or 162(1) in relation, respectively to the PPO or
LPO.

Clause 271 Court may include
further directions etc

Clause 271 provides
that for the purposes of enabling the OT to comply with a direction
given by a court under clause 270, the court may make the direction
or appointment specified in paragraphs 271(1)(a) and (b).
Clause 270 provides that a court may direct the Official Trustee to
pay the Commonwealth an amount equal to the penalty amount under a
pecuniary penalty order or literary proceeds order, out of property
that is subject to a restraining order.

Paragraph 271(1)(a)
permits the court to direct the OT to sell or otherwise dispose of
such of the property that is subject to the restraining order as
the court specifies.

Paragraph 271(1)(b)
permits the court to appoint an officer of the court, or any other
person, to execute any deed or instrument in the name of the person
who owns or has an estate, interest or right in the property and to
do any act or thing necessary to give validity and operation to the
deed or instrument.

Subclause 271(2)
provides that the execution of the deed or instrument by the person
appointed by an order under this clause has the same force or
validity as if the deed or instrument had been executed by the
person who owned or had the estate, interest or right in the
property.

Clause 272 Official Trustee to
carry out directions

This clause provides
that if the OT is given a direction under clause 270 in relation to
property, the OT must, as soon as practicable after the expiry of
the appeal period under clause 273, carry out the matters
prescribed in paragraphs 272(1)(a) to (c) as applicable.

Paragraph 272(1)(a)
directs the OT to sell or otherwise dispose of property that is not
money.

Paragraph 272(1)(b)
directs the OT to apply property that is money, and the amounts
received from the sale or disposition of other property, in payment
of the costs, charges, expenses and remuneration of the kind
referred to in subclause 277(1), being incurred or payable in
connection with the restraining order and payable to the OT under
the regulations. Subclause 277(1) provides that the payment
of the OT’s costs and remuneration may be specified in the
regulations.

Paragraph 272(1)(c)
directs the OT to pay the remainder of the money and amounts
received from the sale or disposition of property to the
Confiscated Assets Account.

Subclause 272(2)
provides that if the remainder of the money and amounts received
from the sale or disposition of property exceeds the penalty
amount, the OT must pay an amount equal to the penalty amount to
the Confiscated Assets Account, and pay the balance to the person
whose property was subject to the restraining order.

Clause 273 Official Trustee not
to carry out directions during appeal periods

Clause 273 provides
that the OT must not carry out a direction given under clause 270
in relation to property until the end of the appeal period under
this clause. Clause 270 provides that a court may direct the
OT to pay the Commonwealth an amount equal to the penalty amount
under a pecuniary penalty order, out of property that is subject to
a restraining order. Subclause 273(1) provides that the OT
must not apply property that is money, and must not sell or
otherwise dispose of property that is not money, until the end of
the appeal period under this clause.

Subject to subclause
273(3), subclause 273(2) prescribes the appeal period for the
purposes of this clause. If the period provided for the
lodging of an appeal against the pecuniary penalty order to which
the direction relates has ended without any such appeal having been
lodged, then the appeal period for the purposes of this clause is
the end of that period. If an appeal against the pecuniary
penalty order has been lodged, the appeal period for the purposes
of this clause is when the appeal lapses or is finally
determined.

Subclause 273(3)
provides the appeal period for the purposes of this clause where
the person is convicted of the offence, or any of the offences, to
which the pecuniary penalty order relates. In such an
instance, the appeal period for the purposes of this clause is when
the period provided for lodging an appeal against the conviction or
convictions to which the direction relates has ended without such
an appeal having been lodged, or, were such an appeal has been
lodged, when the appeal lapses or is finally determined.
Subclause 273(3) further provides that the appeal period for the
purposes of this clause is at the later of the points in time
determined under subclauses 273(2) or (3).

Subclause 273(4)
states deeming provisions for the purposes of determining the
appeal period for the purposes of this clause under subclause
273(3).

Clause 274 provides
that if the OT pays money to the Confiscated Assets Account under
this Division in satisfaction of a person’s liability under a
pecuniary penalty order, the person’s liability under the
pecuniary penalty order is discharged to the extent of the
payment.

Clause 275
Effect of bankruptcy petitions on directions

Where a court
provides directions (pursuant to clause 270) to the OT to pay an
amount to the Commonwealth from the property of a person, those
directions are affected by a subsequent notification of a
bankruptcy petition against that person (whether the petition is
filed by the person’s debtor or creditor).

Until the petition
has lapsed, been withdrawn or been dealt with by a bankruptcy
court, the OT cannot take any action under the direction to sell
the person’s property or pay the directed amount of
money.

Division 5 -
Miscellaneous

Clause 276 Money not to be paid
into the Common Investment Fund

This clause provides
that money that is in the control of the OT due to a restraining
order must not be paid into the Common Investment Fund under the
Bankruptcy Act 1966 , despite anything in that
Act.

Clause 277 Official
Trustee’s costs etc

The costs, charges and expenses
incurred by the OT in connection with their exercise of powers and
the performance of their duties and function under this Act may be
subject of a regulation: paragraph 277(a).

The regulations may also make
provision relating to the remuneration of the OT: paragraph
277(b).

Clause 278
Income generated from controlled property

Clause 278 enables
the OT to apply any income which is generated from controlled
property to the payment of the OT’s expenses etc which are
provided for in regulations made pursuant to clause 277.

If the property is
returned to its owner, the OT must ensure that the difference
between the amount paid to the OT from the income of the controlled
property and the necessary expenditure by the OT on maintenance of
the property or to generate income from the property, is refunded
to the owner. This ensures that where the person’s
property is returned to him or her, the income generated by the
property was only used for purposes related to that property, and
not to remunerate the OT or pay its costs etc under clause
277.

Clause 279 Official Trustee is
not personally liable

Clause 279 provides
that the OT is not personally liable for the matters specified in
paragraphs 279(1)(a) and (b) unless the court is satisfied that the
OT is guilty of negligence in respect of taking custody and control
of the property. Paragraphs 279(1)(a) and (b) prescribe (a)
any loss or damage sustained by a person claiming an entitlement to
all or part of the controlled property, arising from the OT taking
custody and control of the property, and (b) the cost of
proceedings taken to establish an entitlement to the
property.

Subclause 279(2)
provides that the OT is not personally liable for any of the
matters prescribed by paragraphs 279(2)(a), (b) or (c).

Clause 280
Indemnification of Official Trustee

Subclause 280(1)
compels the Commonwealth to indemnify the OT against any personal
liability incurred through the exercise of its powers and duties
under the Act. This indemnity enables the OT to carry out its
functions without the threat of personal liability.

Subclause 280(2)
provides that the Commonwealth has the same right of reimbursement
that the OT would have if the OT made a payment under the
indemnity. The same right of reimbursement is extended by
subclause 280(3) to reimbursements given under another indemnity
provided to the OT.

The indemnity
provided to the OT by the Commonwealth does not affect any other
right the OT has to be indemnified in respect of personal
liability, or any other indemnity provided to the OT for such
personal liability: subclause 280(4)

Part 4-2 - Legal
Assistance

Division 1 -
Use of restrained assets for paying legal costs

This Division
establishes a new scheme for the provision of legal assistance to
persons whose assets are restrained under the Act. This
assistance is available to a suspect who is defending a criminal
charge; it is also available to a person who is contesting
nominated forfeiture proceedings where that person’s assets
were restrained on the basis that he or she (or if a third party,
the suspect) was reasonably suspected of having committed a serious
offence (‘ civil-forfeiture ’
proceedings).

There are two parts
to the scheme: ‘legal aid legal assistance’ and
‘court ordered legal assistance’.

‘Legal aid
legal assistance’ will be provided by the legal aid
commission of the State or Territory in which the person’s
assets have been restrained, or an application for a forfeiture
order, PPO or LPO has been made. The provision of that legal
assistance will be in accordance with the proceeds aid
agreement entered into between the Commonwealth and the
particular jurisdiction.

The Commonwealth
anticipates that the provision of legal assistance through the
legal aid commissions will greatly reduce the amount of restrained
assets dispersed for legal expenses.

In jurisdictions where no proceeds aid
agreement exists, and therefore legal aid assistance is not
available, the person will be able to seek payment of his or her
legal costs from the restrained assets in accordance with the
procedures set out in clauses 281-284.

To provide legal
assistance, the court must be satisfied that the legal assistance
is not being granted out of property which is either the proceeds
or instrument of an offence.

Court ordered
legal assistance

Clause 281 Court may allow
restrained property to be used for legal costs

Subclause 281(1)
provides that where the requirements set out in clause 284 are met,
a court may make an order allowing a suspect access to his or her
restrained assets to pay for specified legal costs.

Subclause 281(2)
provides that if the requirements set out in clause 284 are met, a
person other than the suspect may also be granted access to his or
her restrained assets by the court, for payment of specified legal
costs.

The court is not
able to grant a suspect or third party access to his or her
restrained assets for all legal costs. Subclause 281(3)
mandates that the court must specify which legal costs are allowed
in the order.

Subclause 281(4)
enables the DPP to appear in proceedings to establish whether the
requirements of clause 284 are met by questioning the suspect or
other person.

Clause 282 Legal costs of a
suspect that may be paid

Clause 282 limits
the legal costs of a suspect that may be met from the restrained
assets. The suspect may seek payment of costs incurred
defending a criminal charge; this assistance is not limited to
defending a Commonwealth charge. A suspect whose property is
sought to be restrained or confiscated on the basis that he or she
was reasonably suspected of having committed a serious offence may
also seek assistance for contesting nominated forfeiture
proceedings (‘ civil-forfeiture ’
proceedings).

If the suspect is
contesting ‘civil-forfeiture’ proceedings, the
legal costs that may be met from the restrained assets are those
incurred in proceedings contesting the making of a restraining
order, forfeiture order, PPO, LPO or examination order. The
suspect may also seek payment of his or her legal costs for
representation at the hearing of an application to exclude some or
all of his or her property from a restraining order, forfeiture
order, PPO or LPO. If the court makes an order allowing the
suspect to be examined, the suspect can seek the costs of legal
representation at the examination to be met from the restrained
assets.

Clause 283 Legal costs of
another person that may be paid

This clause provides
a person who is not the suspect with access to restrained assets to
pay for legal costs incurred in contesting nominated forfeiture
proceedings where the person’s assets are sought to be
restrained or confiscated on the basis that the suspect was
reasonably suspected of having committed a serious offence
( ‘civil-forfeiture’
proceedings).

The person may be
granted access to restrained assets to contest the making of a
restraining order, forfeiture order, PPO, LPO or examination
order. The person may also seek access for representation at
a hearing to exclude some or all of his or her property from a
restraining order, forfeiture order, PPO or LPO; if the person is
to be examined, he or she may seek the legal costs of
representation at that examination.

Clause 284 When courts may make
an order

Clause 284 directs
that the court may only make an order allowing a person’s
legal costs to be met from restrained assets if the requirements in
clause 284 are met. Subclauses 284(a)-(c) set out the
obligations which must be met by the person prior to the
application being heard by the court. The remaining
provisions cover matters of which the court must be satisfied or
have done.

Paragraph 284(1)(a)
requires the person whose assets are restrained to apply to the
court for access to those restrained assets for legal
assistance. Through the operation of this subclause the
application may not be brought by any other person.

Paragraph 284(1)(b)
requires that person to notify the DPP in writing of the
application, and the grounds on which the application is being
made.

Paragraph 284(1)(c)
requires the person who is applying for access to the restrained
assets to disclose all of his or her entitlements and liabilities
in the property in a statement on oath, and to file that with the
court. This will enable the court to gain a clear picture of
the person’s property.

Paragraph 284(1)(d) requires the
court to assess whether or not the person can meet his or her legal
costs from property apart from the restrained assets. The
court may only consider property which is not restrained under the
Act or a corresponding law or foreign restraining order, or which
has been released from the restraining order pursuant to clause 24
to meet debts or expenses (which are not legal costs).

If a person can meet the costs
from other sources, then he or she would not be granted access to
the restrained assets. If the court finds that the person
cannot meet the legal costs, then the court may order access to the
restrained assets to pay for those costs.

Paragraph 284(1)(e)
requires the court to be satisfied that the person has brought all
of his or property into the jurisdiction of the court. This
enables the court to taken into account all of the person’s
property when assessing whether or not the person should be granted
access to the restrained assets to pay legal
costs..

Paragraph 284(1)(f)
requires the court to determine whether or not the particular
restrained property to which the person is seeking access is either
an instrument or proceeds of an offence. If the person is
seeking access to all of the restrained property, the court must
make a determination in relation to all of the property.

The court may not
make an order for access to any property that is determines is an
instrument or proceeds of an offence.

Paragraph 284(1)(g)
prohibits the court from ordering access to the restrained assets
if there is a proceeds aid agreement (see subclause 284(2))
which covers the kind of proceedings in respect of which legal
costs are sought. As the proceeds aid agreement must cover
the particular proceedings for which the person is seeking legal
assistance, a person will be able to seek assistance from the court
if there is only a partial agreement in place.

Paragraph 284(1)(h)
operates to ensure that the OT has been ordered by the court to
take custody and control over the relevant restrained assets.
So that the restrained assets are not abused through excessive
legal costs, the OT is able to seek taxation of legal costs which
the court orders to be paid from the restrained assets. Until
a taxation order is settled, the OT may not release the assets for
payment of the costs unless so ordered by the court.

Subclause 284(2)
defines proceeds aid agreement . A proceeds aid
agreement is an agreement between the Commonwealth and a State or
the ACT or NT for the provision of legal assistance to a suspect or
other person by a legal aid commission. The agreement only
relates to legal assistance for a person whose assets are
restrained under the Act, and who is contesting
‘civil-forfeiture’ proceedings under the Act, or
defending a criminal charge. Legal assistance is not
available under a proceeds aid agreement for a person contesting
conviction-based forfeiture proceedings.

For a person to seek
assistance from a legal aid commission in accordance with a
proceeds aid agreement, there must be a current proceeds aid
agreement between the Commonwealth and the State or the ACT or NT
in which the application for the restraining order, forfeiture
order, pecuniary penalty order, literary proceeds order or
examination is made.

A proceeds aid agreement must specify that
it is a proceeds aid agreement made for the purposes of the
Act.

Clause 285 Limitations on
costs

This clause enables
the Commonwealth to regulate the maximum legal costs that may be
paid from restrained assets. This provision applies only to
legal costs which are ordered by the court to be paid from the
restrained assets.

Where there are maximum costs specified in
the regulations, subclause 285(2) prohibits the OT from making
payments which would exceed the stipulated amount of costs.

Where a LAC has
provided legal assistance to a suspect pursuant to a proceeds aid
agreement, clause 286 provides for reimbursement from the
restrained assets of the suspect to the LAC.

Those costs are paid to the LAC by the OT,
who has custody and control of the property. The costs that
may be paid from the restrained assets are limited to the types of
proceedings set out in clause 282, and any other legal costs for
the provision of legal assistance by the LAC pursuant to a proceeds
aid agreement.

‘Costs’ for the purposes of
payments that may be made to a LAC have not been defined in the
Act; they will be defined in the proceeds aid agreements between
the Commonwealth and the States and the ACT or NT.

Where a LAC has
provided legal assistance to a person who is not a suspect pursuant
to a proceeds aid agreement, clause 286 provides for payment from
the restrained assets of that person to the LAC.

Those costs are paid to the LAC by the OT,
who has custody and control of the property. The costs that
may be paid from the restrained assets are limited to the types of
proceedings set out in clause 283 and any other legal costs for the
provision of legal assistance by the LAC pursuant to a proceeds aid
agreement.

Clause 288 Payments may
sometimes be made out of the Confiscated Assets Account

Subclause 288 (1)
provides that where a LAC provides legal assistance to a person for
proceedings set out in subclause 282(b) or (c) or clause 283
( ‘civil-forfeiture’ proceedings), the LAC can
recover from the Confiscated Assets Account the amount of legal
costs which exceeds the value of the restrained assets.

Payment by the OT to
the LAC must be made to the LAC if paragraphs 288(1)(a)-(c) are
satisfied. The amount the OT must pay to the LAC is the
amount of the excess.

Paragraph 288(1)(a)
requires the OT to certify that the LAC’s costs exceed the
value of the person’s restrained property.

Paragraph 288(1)(b)
requires the Attorney-General or delegate to certify the legal
costs.

Paragraph 288(1) (c)
requires the Minister to consent to the payment from the
Confiscated Assets Account. [All payments from the
Confiscated Assets Account must be approved by the
Minister].

Subclause 288(2)
enables a LAC to be paid from the Confiscated Assets Account where
the disposal by the OT of the restrained assets would take
considerable time. The LAC may be paid for legal costs
incurred in proceedings mention in clause 282 or clause 283
(defending a criminal charge or contesting
‘civil-forfeiture’ proceedings). This acts like
an advance on the restrained assets, and the amount paid to the LAC
cannot exceed the assessed value of the restrained assets.
The assets must be valued before payment can be made under this
clause.

Payment from the CAA
must be approved by the Minister. In addition, the
Attorney-General or delegate must certify the costs of the
LAC.

Clause 289
Taxing costs

Subclause 289(1)
provides for a court to order the taxation of legal costs which are
to be met from the restrained assets. This provision applies
only to legal costs which are ordered by the court to be paid from
the restrained assets.

Paragraph 289(1)(a)
stipulates that for the court to make that order, the restrained
assets must have been placed in the custody and control of the OT
by an order under clause 36.

Paragraph 289(1)(b)
requires that the court must also have made an order (under clause
281 or 282) allowing a person to have his or her legal costs met
from the restrained assets.

An application for
the taxation of legal costs may only be brought by the OT, and the
OT must give written notice of the application to the person whom
the court made the order for legal costs in relation to: paragraph
289(1)(c).

Subclause 289(2)
provides that where the OT has made an application for an order
under subclause 289(1) in respect of specified legal costs, the OT
does not need to meet those legal costs unless ordered by the
court, or one of the events in paragraphs 289(2)(a) or (b)
occurs.

If a taxation order
is made pursuant to subclause 289(1), the legal costs may be paid
once that order is complied with: paragraph 289(2)(a).

If no taxation order
is made, but the application under subclause 289(1) (and any
appeals arising from that application) are finalised or otherwise
disposed of, the legal costs may be met: paragraph
289(2)(b).

This clause enables
the DPP or OT to pass on to a LAC information obtained under the
Act which would assist the LAC in determining an application for
legal assistance made by a person pursuant to a proceeds aid
agreement.

This ensures that
the LAC is not hindered in processing the application by lack of
information, and has a clear picture of the person’s
financial situation.

Division 2 -
Legal assistance from the Attorney-General

Clause 291 Attorney-General may
provide legal assistance

Subclause 291(1)
enables a person (whether or not he or she is a suspect) to apply
to the Attorney-General for legal assistance. A person may
only apply under this clause if he or she is contesting forfeiture
proceedings where the application for the relevant order is made on
the ground that the person was convicted, charged or about to be
charged with an indictable offence (that is,
‘conviction-based’ forfeiture
proceedings).

The person may apply
for assistance to contest the making of a restraining order,
forfeiture order, PPO or LPO. The person may also seek
access for representation at an application to exclude some or all
of his or her property from a restraining order, forfeiture order,
PPO or LPO.

Subclause 291(2)
provides that a person may also apply to the Attorney-General for
legal assistance to prevent an examination order being made or for
representation at an examination. The person may seek that
assistance if the examination relates to a restraining order which
was made on the ground that the person was convicted, charged or
about to be charged with an indictable offence (ie
‘conviction-based’ forfeiture
proceedings). The person may also seek assistance under this
provision, if the examination is conducted or to be conducted under
clause 175 of the Act, in relation to an application by the DPP for
the confirmation of a forfeiture order.

Pursuant to
subclause 291(3), the Attorney-General may authorise the
Commonwealth to provided legal or financial assistance for
forfeiture proceedings to a person who applies under subclause
291(1).

The Attorney-General
may authorise the assistance if refusal of the application would
involve hardship to the person and it is reasonable, in all the
circumstances, to grant the application.

If the
Attorney-General does authorise the assistance, subclause 291 (4)
enables the assistance to be made subject to conditions.

Part 4-3 - Confiscated Assets
Account

Clause 292
Establishment of Account

Subclause 292(1)
formally establishes the Confiscated Assets Account.
Subclause 292(2) provides that the Account is a Special Account for
the purposes of the Financial Management and Accountability Act
1997 .

Clause 293 Credits to the
Account

Subclause 293(1)
provides that the following money is credited to the
Account:

· proceeds of confiscated assets (paragraph
293(1)(a)). This expression is defined by a new definition
inserted in the Dictionary. It identifies the sources of
funds, recovered under the principal Act, the Customs Act
1901 and the Crimes Act 1914 , which are payable to the
Account;

· money paid to the Commonwealth by a
foreign country under a treaty or arrangement providing for mutual
assistance in criminal matters (paragraph 293(1)(b));

· money paid to the Commonwealth following
the successful enforcement of the foreign pecuniary penalty order
in Australia under the provisions of the Mutual Assistance Act
(paragraph 293(1)(c));

· money deriving from the successful
enforcement of an interstate forfeiture order registered in a
Territory (except where covered by a direction under subclauses
66(2)or 95(2): (paragraph 293(1)(d)). Under an
agreement between the Commonwealth, State and Territory, the
proceeds resulting from the forfeiture of property are to be
retained by the jurisdiction in which they forfeiture order was
made. Thus, if an interstate forfeiture order is registered
under the Act for enforcement against property located in a
Territory (other than the ACT or NT), the resulting proceeds are
payable to the Commonwealth and will be payable to the
Account;

· money received from a State or the ACT or
NT Government pursuant to the equitable sharing program (paragraph
293(1)(e)). This refers to money recovered under State or ACT
or NT proceeds legislation but shared with the Commonwealth
because of the contribution made by a Commonwealth agency to the
investigation or prosecution of the criminal matter or to the
related confiscation proceedings; and

· money that is paid to the Commonwealth by
a foreign country in recognition of assistance provided by
Commonwealth law enforcement agencies (paragraph 293(1)(f)).
This is in addition to money paid to the Commonwealth by a foreign
country under a treaty or arrangement providing for mutual
assistance in criminal matters.

Subclause 293(2)
provides that all amounts paid into the Account which are declared
by the regulations to be distributable funds or suspended funds are
to retain that identity while they remain within the Account.
The phrase “suspended funds” is defined at subclause
294(2) and “distributable funds” is defined in
subclause 295(7).

All proceeds
recovered under the Act are paid into the Account. That is
intended to include any proceeds recovered by the DPP as a result
of a negotiated settlement of any forfeiture proceedings such as
any recovery included in a consent order; and any recovery of
proceeds by an agency by means of a negotiated
settlement.

Subclause 293(3)
identifies what monies are proceeds of confiscated
assets.

Subclause 293(4)
sets out the requirements for an arrangement to be an equitable
sharing program.

Clause 294 Payments out of the
Account

Subclause 294(1)
sets out the purposes of the Account in respect of suspended
funds. The money is to be used for:

· making payments under the equitable
sharing program (paragraph 294(1)(a));

· making payments overseas pursuant to a
foreign forfeiture order, foreign pecuniary penalty order or an
order under section 45 of the International War Crimes Tribunal
Act 1995 that was enforced in Australia and in relation to
which Australia’s Mutual Assistance arrangement provides for
the repatriation of an amount recovered (paragraph
294(1)(b));

· making payments to a State, ACT or NT in
relation to an interstate order which was registered under the
Mutual Assistance Act and assets were repatriated from overseas
following enforcement in a foreign country under the Mutual
Assistance arrangement (paragraph 294(1)(c));

· payment of the OT’s costs under
clause 277(1)(a) which the OT has been unable to recover (paragraph
294(d));

· payment of the annual management fee for
the Account. The regulations will make provision for the
deduction of a management fee which will cover the administrative
costs associated with the management of the Account (paragraph
294(1)(e);

· payment of amounts that are ordered to be
paid by the Commonwealth in compensation for third party interests
under either paragraphs 69(2)(d) or 84(1)(b) or sub-paragraph
97(1)(d)(ii) of the Act (paragraph 294(1)(f)); and

· making payments to a relevant LAC in
accordance with Part 4-2 (paragraph 294(1)(g)).

Subclause 294(2) defines suspended funds for the
purposes of the Confiscated Assets Account.

Clause 295
Determinations by Official Trustee about suspended and
distributable funds

Clause 295 is based
on section 34E of the Proceeds of Crime Act 1987 . It
provides that the Official Trustee shall periodically, and at least
once every six months, determine whether the amount of suspended
funds in the Account is likely to be insufficient for the
requirements of subclause 294(1).

Under subclauses
295(2) and (3), the OT will be able to identify further funds as
‘suspended funds’ in the case of a deficiency
(subclause (2)) or to declare that surplus ‘suspended
funds’ are to be identified as ‘distributable
funds’.

Where the amount of
suspended funds is likely to exceed the amount required to meet the
payments for the purposes of subclause 294(1), subclauses 295(4)
and (5) require the OT to identify an amount as distributable
funds. The amount specified cannot be more than the amount of
the likely excess.

Part 4-4
- Charges over restrained proeprty for payment of certain
amounts

Clause 296 Official
Trustee’s and legal aid commission’s
charges

This clause ensures
that the costs of the OT and legal aid commission are met prior to
the restrained assets being released, either pursuant to the
restraining order being revoked by the court or the cessation of
the order in accordance with clause 43.

Clause 296 does this
by creating a charge on the property for the payment of the
OT’s expenses, the LAC or both.

This clause does not
apply to the OT if the restraining order ceases to be in force and
the property is returned to its owner.

Clause 297 When the charge
ceases to have effect

Paragraph 297(a)
provides that the charge ceases to have effect if the amount owing
to the OT, LAC or both is paid.

If the person becomes bankrupt, the charge
ceases to have effect by force of paragraph 297(b).

Paragraph 297(c)
provides that the charge also ceases to have effect if the property
is sold or disposed of with the consent of the OT.

Clause 298 Priority of
charge

This clause
establishes the priority of a charge which is created in favour of
the OT or a LAC under clause 296.

Paragraph 298(a)
provides that a charge made in favour of the OT or a LAC is subject
to all earlier encumbrances that would otherwise have
priority. For example, if the restrained property is a house,
there may be an earlier mortgage which upon disposal of the
property would be paid out prior to the OT or LAC.

Paragraph 298(b)
provides that the OT charge has priority over other
encumbrances. This includes a charge in favour of a
LAC.

Paragraph 298(c)
provides that a charge in favour of a LAC has priority over all
other encumbrances.

Paragraph 298(d)
enables a charge to continue to have effect, despite any change in
ownership of the property; however, this is subject to the matters
set out in clause 297.

Part 4-5 - Enforcement of
interstate orders in certain Territories

This Part enables
restraining orders, and forfeiture orders made under prescribed
legislation of a State, the Northern Territory or the Australian
Capital Territory to be registered and enforced in the external
Territories.

Division 1
- Interstate restraining orders

Clause 299 Registration of
interstate restraining orders

Clause 299 deals
with the registration in a Territory of a restraining order made
interstate which is expressed to apply to property in that
Territory.

Subclause 299(1)
permits the registration in the Supreme Court of a Territory of a
copy of a restraining order, sealed by the court, which was granted
interstate, and is expressed to apply to specified property, or all
of the property of the specified person, or all property (other
than specified property) of a specified person, which is located in
the Territory.

Subclause 299(2)
permits a copy of any amendments made to the IRO, whether before or
after the restraining order has been registered in that Territory,
to be registered in the same was as the original order. Such
amendments do not take effect until they are registered.

Subclause 299(3)
permits the registration of an IRO to be refused, to the extent
that the IRO would not be able to be enforced in the Territory once
registered.

Subclause 299(4)
provides that the registration must be effected in accordance with
the Rules of the Supreme Court of the Territory.

Clause 300 Effect of
registration

Subclause 300(1)
provides that once an IRO is registered in the Supreme Court of a
Territory, that IRO may be enforced in the Territory as if it were
a restraining order made at the time it was registered.

Subclause 300(2)
provides that the Act, except for certain specified clauses,
applies to an IRO which has been registered in the Territory in the
same way as it would apply to a restraining order made under the
Act.

Clause 301 Duration of
registration

Clause 301 provides
that an IRO which has been registered in a Territory under the Act
ceases to be in force in the Territory if it ceases to be in force
in the State in which it was made, or registration of the order is
cancelled under clause 302 of the Act.

Clause 302 Cancellation of
registration

This clause provides
for the cancellation of registration of an IRO in a
Territory.

Under subclause
302(1), the Supreme Court of the Territory may cancel the
registration of an IRO if the registration was improperly
obtained. The court may also cancel the registration if the
particulars of any amendments made the IRO or any ancillary orders
or directions made by a court in relation to the IRO were not
communicated to the Supreme Court in accordance with the rules of
the Supreme Court.

Pursuant to
subclause 302(2), the Supreme Court is also able to cancel the
registration of an IRO to the extent that the IRO in not
enforceable in the Territory.

Upon occurrence of
the events specified in paragraphs 303(1)(a) to (d), subclause
303(1) creates a charge over the property which is the subject of
an IRO to secure the payment of an interstate PPO.

Paragraphs 303(1)(a)
to (d) require an IRO and interstate PPO to have been made against
a person, and each of those orders to have been registered in the
Supreme Court of a Territory. The IRO must be made in
relation to the person’s conviction for an interstate
indictable offence, or the charging or proposed charging of the
person with an interstate indictable offence, and the interstate
PPO must be made in relation to the person’s conviction for
an interstate indictable offence.

The charge is
created over the property upon the registration of the IRO or the
interstate PPO, whichever occurs last.

Subclause 303(2)
provides for the cessation of the charge.

Paragraph 303(2)(a)
provides that where the conviction which the PPO was made in
relation to is quashed, the charge ceases to have
effect.

The charge also
ceases where the person successfully appeals against the PPO and
the order is discharged by the court : paragraph
303(2)(b).

Pursuant to
paragraphs 303(2)(c) and (d), if the person pays out the PPO in
full, or alternatively, becomes a bankrupt, the charge ceases to
have effect.

Pursuant to paragraph 303(2)(e),
certain sale or disposal of property also causes the cessation of
the charge. The property may be disposed of in three
ways. They are, by order of the court in the jurisdiction in
which the PPO was made; by the owner of the property with the
consent of the court; or (where appropriate) by the owner of the
property with the consent of the person directed by the IRO to take
control of the property.

Sale of the property
to a purchaser for sufficient consideration, where the person has
no notice of the charge and purchases in good faith will also cause
the charge to cease: paragraph 303(2)(f).

Subclause 303(3)
provides that a that a charge made under this clause is subject to
all earlier encumbrances that would otherwise have
priority.

By operation of paragraph
303(3)(b), the charge has priority over all other
encumbrances.

Paragraph 303(3)(c)
enables a charge to continue to have effect, despite any change in
ownership of the property; however, this is subject to the matters
set out in subclause 303(2).

Subclause 303(4)
provides that where the Commonwealth, a State or Territory have a
system of registration for certain types of property the OT or the
DPP may apply for a charge created by clause 303 to be registered
with the relevant authority. Once registration is effected,
any person who purchases or otherwise acquires an interest in the
property is taken to have notice of the charge.

Clause 304 Powers of Official
Trustee in relation to interstate restraining orders

This clause provides
that when an IRO is registered in a Territory, and the order
directs a State, ACT or NT official to take control of the
restrained property, the OT may with the agreement of the official,
exercise the same powers in relation to that property as the State
official could if the property were located in that State, the ACT
or NT.

Division 2
- Interstate forfeiture orders

Clause 305 Registration of
interstate forfeiture orders

This clause enables
an interstate forfeiture order (IFO) which applies to property
located in a Territory to be registered in the Supreme Court of
that Territory.

Subclause 305(1) permits the registration
in the Supreme Court of a Territory of a sealed copy of a
forfeiture order granted interstate, where that forfeiture order
applies to property in the Territory. The registration may be
effected by the person on whose application the order was made or
an appropriate officer.

Subclause 305(2)
permits a copy of any amendments made to the IFO, whether before or
after the forfeiture order has been registered in that Territory,
to be registered in the same was as the original order. Such
amendments do not take effect until they are registered.

Subclause 305(3)
permits the registration of an IFO to be refused, to the extent
that the IFO would not be able to be enforced in the Territory once
registered.

Subclause 305(4)
provides that the registration must be effected in accordance with
the rules of the Supreme Court of the Territory.

Clause 306 Effect of
registration

This clause provides
for the enforcement of an IFO which has been registered in the
Territory. The IFO may be enforced in the Territory from the
time of registration as if it were a forfeiture order made under
the Act

Subclause 306(2)
applies the Act (apart from Divisions 5 and 6 or Part 2-2 and
clause 317) to an IFO registered in a Territory, as the Act applies
to a forfeiture order.

Clause 307 Duration of
registration

This clause provides
for the cessation of the registration an IFO in a Territory.
An IFO ceases to be registered under the Act if the order ceases to
be in force in the State in which it was made, or the registration
is cancelled under clause 308 of the Act.

Clause 308 Cancellation of
registration

This clause provides
for the cancellation of registration of an IFO in a
Territory.

Under subclause
308(1), the Supreme Court of the Territory may cancel the
registration of an IFO if the registration was improperly obtained;
the court may also cancel the registration if the particulars of
any amendments made the IFO or any ancillary orders or directions
made by a court in relation to the IFO were not communicated to the
Supreme Court in accordance with the rules of the Supreme
Court.

Pursuant to
subclause 308(2), the Supreme Court is also able to cancel the
registration of an IFO to the extent that the IFO in not
enforceable in the Territory.

Division 3
- Miscellaneous

Clause 309
Interim registration of faxed copies

This clause provides
for the interim registration of facsimile copies of interstate
restraining orders and interstate forfeiture orders and amendments
to such orders.

Subclause 309(1)
deems a facsimile copy of a sealed copy of an IRO, IFO or amendment
to either of those orders which has been certified in accordance
with the rules of the Supreme Court to be the same as a sealed copy
for the purposes of the Act.

Under subclause 309(2) a sealed copy of the
relevant order (that is not a facsimile copy) must be registered
with the court within five days of the registration of the
facsimile copy; if this does not occur, the registration effected
by the facsimile copy ceases to have effect.

Where a sealed copy
(that is not a facsimile copy) is registered with the court within
the five day period, the registration takes effect as of the date
that the facsimile copy was registered: subclause
309(3).

Chapter 5 - Miscellaneous

Clause 310 State and Territory
courts to have jurisdiction

This provision vests
the courts of the State and Territories with jurisdiction in
relation to matters arising under the Act. In relation to a
court of a Territory, jurisdiction is only vested as far as the
Constitution permits.

Subject to the
operation of clause 50, the jurisdiction vested in the State and
Territory courts by this clause is not limited by any limits which
any other jurisdiction of the court may be limited by. For
example, under this clause an intermediate court would be able to
entertain an application for forfeiture where the amount sought to
be forfeited could exceed that court’s monetary
jurisdiction.

Clause 311
Proceedings are civil, not criminal

This clause makes it
clear that all proceedings under this Act are civil
proceedings. Except for the offence provisions contained in
the Act, the rules of construction and evidence applicable in civil
cases apply to the interpretation of, and proceedings under, the
Act.

Clause 312 Standard of
proof

This clause makes it
clear that subject to clauses 49, 113 and 149, all questions of
fact which are to be determined by a court pursuant to an
application under this Act are to be decided to the civil standard
(the balance of probabilities).

Clause 313
Proof of certain matters

Clause 313
facilitates the proof of certain matters. A certificate under
section 180 of the Evidence Act 1995 relating to convictions,
acquittals, court orders or other judicial proceedings is
admissible in civil proceedings under the Act. In proceedings
for an application under the Act the transcript of the examination
is evidence of the answers given by a person in the course of the
examination.

Clause 314
Stay of proceedings

This clause provides
that proceedings under the Act may not be stayed on the grounds
that criminal proceedings have been instituted or commenced
(whether under this Act or not).

Clause 315
Effect of the confiscation scheme on sentencing

Clause 315 establishes what matters under
the Act a sentencing court may or must take into account. The
provisions ensure that a person’s sentence is not mitigated
by the fact that the person forfeited the proceeds or benefits of
the offence for which he or she is being sentenced.

The court may take
into account any cooperation the person has provided in relation to
an action under the Act: paragraph 315(a).

Where property is
forfeited in relation to the offence for which the court is
sentencing the person, the court must not take into account
forfeited property which is the proceeds or instrument of the
offence; however, the court must take into account any other
property forfeited: paragraphs 315(b) and (c).

The court may not
take into account the effect of a PPO or LPO that relates to the
offence: paragraph 315(d).

Clause 316 Deferral of sentencing
pending determination of confiscation order

Where an application
for a confiscation order is made to the court on the basis of the
person’s conviction for that offence, clause 316 enables a
court which has convicted a person of an offence to defer the
sentencing of the person for that offence until it has determined
the application for the confiscation order.

Clause 317 Appeals

Subclause 317(1)
enables a person against whom a confiscation order is made, or
whose interest in property is either the subject of a forfeiture
order or has been declared available to satisfy a PPO or LPO, to
bring an appeal against those orders (referred to as a
targeted order ) in the manner set out in the rest of
clause 317.

Subclause 317(2)
provides that, where the targeted order in subclause (1) was made
in relation to a conviction of an offence, the person may appeal
against the order in the same manner as if the targeted order were,
or were part of, a sentence imposed on the person in respect of the
offence.

Subclause 317(3)
provides that, in any other case (that is, where the targeted order
was not made in relation to a conviction), the person may appeal
against the targeted order as if the person had been convicted of
the offence to which the primary order relates and that order were,
or were part of, a sentence imposed on the person in respect of the
offence.

Subclause 317(4)
sets out the appeal rights of a person in respect of a primary
order relating to a foreign indictable offence. Under this
subclause, the person may appeal against the targeted order in the
same manner as if the person had been convicted of the offence in
the State or Territory in which the targeted order was made and
that order were, or were part of, a sentence imposed on the person
in respect of the offence.

Subclause 317(5)
provides that the DPP has the same right of appeal against a
targeted order as the person referred to in subclause (1) and has a
right of appeal against a refusal by a court to make a targeted
order in the same manner as if that order were made and the DPP
were appealing against that order.

Subclauses 317(6)
and (7) provide that on an appeal against a targeted order, the
order may be confirmed, discharged or repealed, and that the
clause does not affect any other right of appeal.

Clause 318 Costs

Subclause 318(1)
sets out the circumstances in which the court may order the
Commonwealth to pay all costs incurred by a person involved in
certain proceedings in relation to forfeiture or restraining
orders. A number of pre-conditions must be satisfied before
the order can be made. First, under paragraph 318(1)(a), the
person must bring, or appear at, proceedings under the Act in order
to prevent a forfeiture order or restraining order from being made
against property of the person, or to have property excluded from
such orders. Secondly, paragraphs 318(1)(b) and (c) provide
that the person must be successful in the proceedings and the court
must be satisfied that the person is not involved in the commission
of the offence relating to the orders.

Subclause 318(2)
provides that the costs referred to in subclause (1) are not
limited to costs normally recoverable by the successful party in
civil proceedings.

Pursuant to
subclause 319(1), a power conferred by this Act on a State or
Territory judge or on a magistrate that is neither judicial nor
incidental to a judicial function or power, is a power conferred on
that person in a personal capacity and not as a court or a member
of a court.

Subclause 319(2)
provides that the State or Territory judge, or the magistrate, is
not compelled to accept the power conferred.

Subclause 319(3)
provides that a State or Territory judge, or the magistrate
exercising a conferred power has the same protection or immunity as
if he or she were exercising that power as, or as a member of, the
court of which the judge or magistrate is a
member.

Clause 320
Effect of a person’s death

The effect of this clause is that
proceedings under the Act may be instituted and continued against a
person who has died; the rights of a third party may also be
enforced after his or her death.

It is not
anticipated that proceedings for conviction-based forfeiture could
be instituted under this provision, however, civil-forfeiture
proceedings could be. Subclause 320(3) gives the court
discretion to hear and determine applications for orders under the
Act in respect of an interest in property or activities of a person
who has died.

Clause 321 Operation of other
laws not affected

This clause makes it
clear that nothing in this Act limits or restricts the operation of
any other Commonwealth or non-governing Territory law providing for
the forfeiture of property or the imposition of pecuniary
penalties. Nor does the Act limit or restrict the remedies
available to the Commonwealth, apart from this Act, for the
enforcement of its rights and the protection of its
interests.

Clause 322
Review of operation of Act

This clause provides
that the Minister must cause an independent review of the Act to be
undertaken as soon as practicable after the Act has been in
operation for three years. That review report must be in
writing, provided to the Minister and then tabled in both houses of
Parliament.

If a Parliamentary
committee has reviewed the Act prior to that time, or started such
a review, the clause does not apply.

Clause 323
Regulations

Clause 323 contains
the general regulation making power. It provides that the
Governor-General may make regulations prescribing matters that are
required or permitted to be prescribed; or necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.

Chapter 6
- Interpreting this Act

Part 6-1
- Meaning of some important concepts

Division 1
- Proceeds and instrument of an offence

Clause 324
Meaning of proceeds and instrument

This clause defines
what constitutes the proceeds or an instrument of an
offence.

Subclause 324(1)
provides that property is the proceeds of an offence whether it is
either wholly or partly derived or realised from the commission of
an offence, and whether it is either directly or indirectly derived
or realised from the commission of that offence.

Subclause 324(1)
also provides that the property so derived does not have to be
situated in Australia to be the proceeds of an offence for
the purposes of the Act. Paragraph 37(1)(g) empowers a court
making a restraining order to make an ancillary order requiring the
person to bring restrained property within the jurisdiction.
Further, where applicable, the Commonwealth is able, through
operation of the Mutual Assistance in Criminal Matters Act 1987, to secure the proceeds of an offence which are located
overseas. The extended reach of that Act provides that
suspects cannot evade forfeiture by transferring their proceeds
overseas.

Subclause 324(2)
provides that property is an instrument of an offence if it
was used, or intended to be used, in or in connection with the
commission of an offence. This is distinct from
proceeds of an offence, which flow from the commission of an
offence. For example, if a small plane is used to import
narcotics into Australia, that plane becomes an instrument
of that offence, and the money provided to the trafficker upon
reaching Australia is the proceeds of that offence.
Property may be an instrument of an offence even though it
was lawfully acquired.

As with
proceeds , property does not have to be located within
Australia to be an instrument of an offence under the
Act.

Subclause 324(3)
provides that property may be the proceeds or
instrument of an offence even though no person has been
convicted of the offence. For example, in civil forfeiture
proceedings based on conduct constituting an indictable offence, it
will be possible for the court to find that the property was the
proceeds of a Commonwealth offence without the perpetrator of that
offence being identified.

Clause 325 When property becomes,
remains and ceases to be proceeds or an instrument

This clause
establishes that money or other property which is ‘proceeds
of an offence’ or an ‘instrument of an offence’
does not lose its nature as such merely because it is exchanged for
another item or is otherwise dealt with (for example by the sale of
property which is proceeds or an instrument, or by placing cash
which is proceeds into a bank account, or using cash which is
proceeds to purchase property). This prevents a person
from transforming property which is proceeds or an
instrument into ‘clean’ property just by
changing its nature.

Subclause 325(1) deals with proceeds by
providing that property becomes the proceeds of an offence
if it is wholly or partly derived or realised from, or acquired
with, proceeds of the offence. For example, if a house is acquired
for $300,000, and $100,000 of the money used is proceeds of an
offence, the entire property becomes the proceeds of the offence
and is liable to forfeiture.

Subclause 325(2)
deals with instruments in a similar manner.

Subclause 325(3)
establishes that when the proceeds or an instrument
of an offence is used to acquire other property not only does the
original property retain its nature as proceeds or an instrument,
the property acquired with the proceeds takes on that nature, and
itself becomes the proceeds or an instrument of an
offence.

Subclause 325(4)
protects the rights of innocent third parties who acquire the
proceeds or instrument of an offence in certain
circumstances.

An example of how
subclauses 325(1)-(4) would work is set out below:

· If A defrauds the Commonwealth of
$200,000, that money is the proceeds of an
offence.

· If A then purchases a house entirely with
those proceeds, the house becomes the proceeds of an offence, and
the money continues to be the proceeds of an offence.

· However, if the seller of the house has
acquired the money for sufficient consideration (that is, the house
was sold for its value), and the seller does not know, and there is
nothing that would cause him or her to suspect that, at the time of
sale, that the money was the proceeds of an offence, that money
then ceases to be the proceeds of an offence.

· A person who receives the proceeds of an
offence as a gift (and therefore does not supply any consideration
for the property) will be liable to forfeit that property, whether
or not they are aware of the property’s
origin.

A legal
representative defending a person who is charged with a criminal
offence or contesting proceedings under the Act is specifically
protected by paragraph 325(4)(c). This clause
recognises that legal representatives are in a unique position, in
that through the very nature of their work they may often suspect
that their client is paying with the proceeds of an offence, but
still have a duty to represent that person. If legal
representatives were under threat of their earnings being
confiscated every time they represented a client facing forfeiture
action, there is a high chance that such people would not be
afforded legal representation. Other professional groups do
not need a specific exemption, and would be covered by paragraph
325(4)(a).

Paragraphs 325(4)(d)
and (e) provide that property which is an instrument or proceeds of
an offence ceases to have that character if it is the subject of a
forfeiture order under the Act, or an interstate restraining order
or an interstate forfeiture, and the relevant order has been
satisfied.

Paragraph 325(4)(f)
allows property sold or disposed of under the Act to cease to be
the proceeds or an instrument of crime. For example, where
the Official Trustee is of the opinion that the restrained property
is likely to lose value unless sold, that property may be sold
under clause 266. The proceeds of that sale would then
constitute the proceeds or instrument of the offence under clause
269, but the actual property would no longer have that
nature.

Subclause 325(5)
will prevent a person from engaging in a sham transaction with the
proceeds or an instrument of an offence to avoid forfeiture
action. If a person did re-acquire such property in lawful
circumstances, it would be open for them to prove lawful
ownership. This clause is based on subsection 9(6) of the NSW
Criminal Assets Recovery Act 1990 .

Division 2 - Convicted and related
concepts

Clause 326
Meaning of convicted of an offence

Clause 326 is based on subsections 5(1)(3) and (4) of
the Proceeds of Crime Act 1987 .

Subclause 326(1) extends the meaning of
‘conviction’ by establishing four situations in which a
person is taken to have been convicted of an offence for the
purposes of the Act. Paragraphs 326(1)(a) and (b) establish
that a person is taken to be convicted of an offence if the person
was actually convicted of an offence, or was found guilty of the
offence but no conviction was recorded.

If the person has
been found guilty by a court of one offence, and at sentencing
another offence was taken into account, but no formal finding of
guilt in relation to that offence was made, the person is deemed to
have been convicted of that second offence: paragraph
326(1)(c). Paragraph 326(1)(d) extends the definition of
‘convicted’ to a person who has absconded in connection
with the offence. ‘Abscond’ has a particular
definition in the Act, set out in clause 328.

Subclause 326(2)
establishes the jurisdiction in which the person is deemed to have
been convicted of an offence under each of the paragraphs of
subclause 326(1). If the person was convicted pursuant to
paragraphs 326(1)(a)-(c), the person is deemed to have been
convicted in the State or Territory in which the relevant court
finding was made. Where the person was convicted pursuant to
paragraph 326(1)(d), the person is taken to have been convicted in
the State or Territory where the information alleging the
person’s commission of the offence was laid.

In addition, in the
case of an absconder, subclause 326(3) provides that, the person is
taken to have been convicted before the Supreme Court of the
relevant State or Territory, and to have committed the
offence. Thus, applications in relation to the offence are to
be made to the Supreme Court of that State or Territory.

Subclause 326(4)
specifies that clause 326 does not apply to a foreign serious
offence.

Clause 327 Meaning of
quashing a conviction of an offence

This clause, which
is based on subsection 5(2) of the Proceeds of Crime Act
1987 , sets out the circumstances in which each type of
conviction, defined in clause 326, will be taken to have been
quashed.

If a person is taken
to have been convicted of an offence pursuant to paragraphs
326(1)(a) or (b), that conviction is quashed if the respective
conviction or finding of guilt, is quashed or set aside by a
court.

If the person was
taken to have been convicted pursuant to paragraph 326(1)(c), there
are two situations which would result in the conviction being
deemed to have been quashed:

· if the conviction of the offence for
which the person was being sentenced (when the offence of which he
is deemed to have been convicted by paragraph 326(1)(c) was taken
into account) is quashed or set aside; or

· if the decision of a sentencing court to
take into account the offence (of which the person is deemed to be
convicted by paragraph 326(1)(c)) is quashed or set
aside.

If the person was
taken to have been convicted of an offence because he or she
absconded in relation to that offence, the conviction is deemed to
be quashed if the person is brought before a court in respect of
the offence and either is discharged in respect of the offence, or
a conviction of the person for the offence is quashed or set aside:
paragraph 327(1)(d).

Subclause 327(2)
specifies that clause 327 does not apply to a foreign serious
offence.

Clause 328 Meaning of
abscond

This clause, which
is based on section 6 of the Proceeds of Crime Act 1987 ,
establishes the definition of abscond for the purposes of the
Act. The concept of an absconder is relevant only in relation
to conviction-based forfeiture proceedings under the Bill.
Although similar, the definition and its application differs from
that contained in section 6 of the Proceeds of Crime Act
1987 .

A person is taken to
have absconded in connection with an offence if an information has
been laid alleging that the person committed the offence, a warrant
for the person’s arrest has been issued in relation to that
information, and at the end of six months from the date of issue of
the warrant either:

· the person cannot be found, or is not
amenable to justice and there are no extradition proceedings on
foot: paragraph 328(2)(a); or

· the person is outside Australia and
extradition proceedings, which are subsequently terminated without
an extradition order being made, are on foot: paragraph
328(2)(b).

The effect of paragraph 328(2)(b) is to extend the
time at which a person outside Australia is taken to abscond where
extradition proceedings are on foot.

Before making a forfeiture order against a person who
is taken to have absconded, the court is required by clause 49 to
be satisfied that the person has absconded and did commit the
offence. Automatic forfeiture is not available against a
person who is deemed to have absconded: clause 88(4).

Division 3
- Other concepts

Clause 329
Proceeds jurisdiction

This clause
establishes the nexus between the offence and the courts which have
proceeds jurisdiction. Whether or not a court has proceeds
jurisdiction is dependant upon where the relevant offence or
offences took place.

If the conduct, or
part of the conduct constituting the offence to which the order
would relate occurred in a State or Territory, the courts which
have jurisdiction to deal with criminal matters on indictment in
that State or Territory have proceeds jurisdiction.

If all of the
conduct constituting the offence took place outside Australia, the
courts of any State or Territory which have jurisdiction to deal
with criminal matters on indictment have proceeds
jurisdiction.

Clause 330 Meaning of
derived

This clause expands
what is meant by a person having derived proceeds, a benefit
or literary proceeds.

Proceeds, a benefit
or literary proceeds may be derived by the person, or by another
person at the request or direction of the first person. The
proceeds, benefit or literary proceeds may be derived directly or
indirectly.

Clause
331 Meaning of effective control

To ensure that the
operation of the Act is as effective as possible, the Act extends
its reach to property not necessarily owned by the person, but
which is under his or her effective control. This clause
defines ‘effective control’ for the purposes of the
Act.

Property that is the
proceeds or an instrument of crime will frequently be dealt with so
as to avoid it being traced back to its owner; this includes the
transfer of all interests in the property to another person.
‘Effective control’ is defined in subclause 331(1) to
provide that a person need not have a legal or equitable interest
in the property, or a right power or privilege in relation to it,
to have effective control of that property.

To make the
effective control provisions highly effective, subclause 331(2)
deems property held on trust for the ultimate benefit of a person
to be under that person’s effective control.

Subclause 331(3) deems property
that is disposed of to another person without sufficient
consideration, within six years before or after an application for
a restraining order, forfeiture order, pecuniary penalty or
literary proceeds order, to be under the effective control of the
person who disposed of the property. Such disposal will
usually be by way of gift, often to family members or other
associates, and any control exerted over the property would be
disguised. This provision enables a court to look at that
property, without needing the prosecution to show that it is under
the effective control of the suspect.

Subclause 331(4)
also enables a court to look behind the corporate veil, in order to
determine whether particular property is under the effective
control of the defendant. For example, if the property is
owned (either partly of wholly) by a company, the court may look to
a shareholdings in, debentures over or directorships of that
company: 331(4)(a). The court may also look to any trust
which has a relationship to the property: 331(4)(b), as well as the
relationships between the various natural persons, companies and/or
trusts which have an interest in the property:
331(4)(c).

Part 6-2
- Dictionary

Clause
332 Dictionary

This clause defines
a number of terms used throughout the Act, including the
following. (Note: the terms set out below are not a
complete list of the definitional terms).

Approved
examiner

An approved examiner is a person
who holds an office, or who is included in a class of people
specified in the regulations, or who has been appointed by the
Minister under clause 177.

Persons who may be
appointed as approved examiners could include, for example, Members
of the Administrative Appeals Tribunal of certain rank, Members of
the Administrative Appeals Tribunal with at least five years
admission as a practitioner, persons who have held judicial office
and have signified their willingness to be an approved examiner,
former Magistrates who have signified their willingness to be an
approved examiner, and persons with relevant qualifications
(including at least five years admission as a practitioner) who
have signified their willingness to be an approved
examiner.

Australia

This term is defined
to include the external Territories. The external Territories
are t he
Territory of Ashmore and Cartier Islands, the Australian Antarctic
Territory, Territory of Christmas Island Act, Territory of Cocos
(Keeling) Islands, Territory of Heard Island and Macdonald Islands,
and the Coral Sea Islands Territory.

Confiscated
Assets Account

The Confiscated
Assets Account is the account established under clause 292 of this
Bill, which replaces the Confiscated Assets Reserve under the
Proceeds of Crime Act 1987 .

Confiscation
order

This is defined to
mean a forfeiture order, a pecuniary penalty order and a literary
proceeds order; it does not include an automatic forfeiture order
made under Part 2-3.

Corresponding
law

Corresponding law is
defined to mean a law of a State, the Australian Capital Territory,
the Northern Territory or Norfolk Island that is declared by the
regulations to be a law that corresponds to this Act.
Declaring a law to correspond to the Act has the effect of allowing
orders under that law to be registered and enforced in a Territory
(other than the Australian Capital Territory, the Northern
Territory or Norfolk Island).

Criminal
proceeding

This is defined to
have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987 . In that Act, criminal proceeding in
relation to an offence means a trial of a person for the offence or
a committal proceeding in respect of the offence.

Distributable
funds

This terms
identifies those moneys paid to the Commonwealth which will be
available for distribution from the Confiscated Assets
Account. Those moneys may be prescribed by regulation or
identified as distributable funds by the Official Trustee:
subclauses 293(2) and 295(4).

Equitable
sharing program

This definition is
based on the definition of the same phrase that appears in section
4 of the Proceeds of Crime Act 1987 .

The “equitable
sharing program” is relevant to the clause 294 which provides
for the payment of money out of the Confiscated Assets
Account. In particular, sub-paragraph 294(1)(a) provides for
the continued operation of the equitable sharing
program.

Foreign forfeiture
order

This is defined to
have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987 . In that Act, ‘foreign forfeiture
order’ is defined to mean either an order, made under the law
of a foreign country, for the forfeiture of property in respect of
an offence against the law of that country, or a declaration, made
under the law of a foreign country, evidencing forfeiture of
property under the law of that country.

Foreign pecuniary penalty
order

This is defined to
have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987 . In that Act, ‘foreign pecuniary
penalty order’ is defined to mean

an order, made under
the law of a foreign country, imposing a pecuniary penalty in
respect of an offence against the law of that country; but such an
order does not include an order for the payment of a sum of money
by way of compensation, restitution or damages to an injured
person.

Foreign restraining order

This is defined to
have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987 . In that Act, the term means an order
made under the law of a foreign country in respect of an offence
against the law of that country, which is, or purports to be, made
for the purpose of preserving property (whether or not the order
also purports to do other things). This includes an order
restraining a particular person or persons from dealing with the
property, an order freezing the property, and an order directing
either the seizure of the property or that the property be taken
into official custody or control.

Foreign
serious offence

This is defined to
have the same meaning as in the Mutual Assistance in Criminal
Matters Act 1987 , where it means a serious offence against a
law of a foreign country.

Forfeiture
order

This is defined as an order made under
Division 1 of Part 2-2; it does not include automatic
forfeiture.

Indictable offence of Commonwealth
concern

The proceeds of an
‘indictable offence of Commonwealth concern’ are in
some circumstances liable to forfeiture under this
Act.

This definition
establishes that where the proceeds of a State or Territory
indictable offence are dealt with in contravention of a specified
Commonwealth law, that State or Territory offence becomes an
‘indictable offence of Commonwealth concern’. For
this to occur, the proceeds must be dealt with in a way that
contravenes a Commonwealth law on the importation or exportation of
goods; a communication using a postal, telegraphic or telephonic
service or a bank transaction (that isn’t State
banking).

Interstate
forfeiture order

Retains the
definition of this phrase that appears in section 4 of the
Proceeds of Crime Act 1987 . The effect of declaring
interstate forfeiture orders to be within the definition, by
regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern
Territory or Norfolk Island.

Interstate pecuniary penalty
order

Retains the
definition of this phrase that appears in section 4 of the
Proceeds of Crime Act 1987 . The effect of declaring
interstate pecuniary penalty orders to be within the definition, by
regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern
Territory or Norfolk Island.

Interstate
restraining order

Retains the
definition of this phrase that appears in section 4 of the
Proceeds of Crime Act 1987 . The effect of declaring
interstate restraining orders to be within the definition, by
regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern
Territory or Norfolk Island.

Mutual
Assistance Act

This means the
Mutual Assistance in Criminal Matters Act 1987 . The
objects of the Mutual Assistance Act are to, amongst other things,
regulate the provision by Australia of international assistance in
criminal matters when a request is made by a foreign country for
the forfeiture or confiscation of property in respect of a foreign
serious offence, the recovery of pecuniary penalties in respect of
a foreign serious offence, and the restraining of dealings in
property that may be forfeited or confiscated, or that may be
needed to satisfy pecuniary penalties imposed, because of the
commission of a foreign serious offence.

Proceeds aid
agreement

This term is defined
by subclause 284(2) of the Act. A proceeds aid agreement is
an agreement between the Commonwealth and a State or self-governing
Territory for the provision of legal assistance to a suspect or
other person by a legal aid commission. The agreement only
relates to legal assistance for a person whose assets are
restrained under the Act, and who is contesting
‘civil-forfeiture’ proceedings under the Act, or
defending a criminal charge.

For a person to seek assistance from a legal
aid commission in accordance with a proceeds aid agreement, there
must be a current proceeds aid agreement between the Commonwealth
and the State or Territory in which the application for the
restraining order, forfeiture order, pecuniary penalty order or
examination is made.

A proceeds aid agreement must specify that
it is an agreement made for the purposes of the Act.

Proceeds of
confiscated assets

This term identifies
which funds recovered under the Bill, the Customs Act 1901
and the Crimes Act 1914 , are payable to the Confiscated
Assets Account.

Related
offence

This clause uses the
same meaning of related offence as section 8 of the Proceeds of
Crime Act 1987 . A related offence for the purposes of the
Bill is one in which the physical elements of the offence are
substantially the same as the physical elements of another
offence. This definition ensures, for example, that
restraining orders continue to run where minor changes are made to
the charges which have been laid against a person, or where a
person is convicted of an offence other than that with which he was
charged, for example, pursuant to an alternative verdict
provision.

Serious offence

‘Serious
offence’ is defined to include a limited number of offences,
which are generally serial in nature and often use the proceeds of
one offence to commit the next.

Sub-paragraphs
(a)(i)-(v) establish four types of conduct which form the basis of
a ‘serious offence’. In general terms, those
offences are drug trafficking, money laundering and serious
fraud. Paragraph (b) specifies offences against the
Migration Act 1958 relating to people smuggling and the
organised harbouring of illegal entrants. Four FTR offences
are also included in the definition of ‘serious
offence’ (paragraphs (c)-(d)). Those offences are
failing to provide a report about a transfer of currency into and
out of Australia, opening an account etc in a false name, providing
false or misleading information, and conducting a transaction to
avoid the reporting requirements. In addition to the defined
offences, an inchoate offence in relation to a defined
‘serious offence’ is defined by paragraph (e) to itself
be a serious offence, and paragraph (h) allows other indictable
offences to be prescribed as serious offences for the purposes of
the Bill.

A person convicted
of, or found more likely than not to have committed, a serious
offence may be liable under this Bill to forfeit all of his or her
property. Accordingly, the threshold for relevant conduct to
constitute a ‘serious offence’ is set in this
definition as an indictable offence punishable by imprisonment for
three years or more.

The exception to
this is the selected FTR offences, some of which are only
punishable by two or more years’ imprisonment; a monetary
threshold of $50 000 together with a specific provision to
enable the restraining order to be revoked have been included as
safeguards in relation to these offences.

Sufficient
consideration

This clause explains
what is meant by the term ‘sufficient consideration’
when used in the Bill.

Suspended
funds

This term is used to
identify those moneys in the Confiscated Assets Account which are
not available for distribution.

Unlawful
activity

Unlawful activity
encompasses State and Territory indictable offences, as well as
offences against the laws of the Commonwealth and foreign
countries.